r 


THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


V 


SELECTED  CASES 


ON 


THE  LAW  OF 


BAILMENTS  AND  CARRIERS 


INCLUDING  THE  QUASI-BAILMENT  RELATIONS  OF 


CARRIERS       OF      PASSENGERS 

AND 

TELEGRAPH  AND  TELEPHONE 
COMPANIES    AS    CARRIERS 


BY 


EDWIN  C.  GODDARD 

PROFESSOR  OF  LAW  IN  THE  UNIVERSITY  OF  MICHIGAN 


CHICAGO 
CALLAGHAN  &  COMPANY 
'  1904 


CtoPTWQHT   1904 

OALLAQHAN  &  COMPANY 


T 
19^4 


PREFACE 


In  making  this  volume  of  ' '  Selected  Cases  on  the  Law  of  Bail- 
ments and  Carriers,"  the  guiding  principle  has  been  to  secure 
the  clearest  and  fullest  statement  and  application  of  every  lead- 
ing principle  of  the  subject  within  the  range  of  a  moderate 
sized  book. 

The  important  cases,  especially  on  the  law  of  Carriers,  are  so 
many  as  to  make  it  impossible  to  include  all  the  leading  cases. 
Moreover,  the  law  of  Carriers  is  such  a  very  modern  thing  as 
to  make  it  desirable  to  include  many  cases  too  recent  to  be 
considered  leading  cases.  Accordingly,  an  effort  has  been  made 
to  include  all  the  greatest  cases,  even  those  of  considerable 
length,  and  such  others  as,  because  of  their  broad  scope,  recent 
date  or  clear  statements  of  principles,  seem  to  fully  cover  the 
subjects  of  this  branch  of  the  law.  The  Selected  Cases  are  in- 
tended to  be  complete  enough  to  fit  the  book  for  use  by  those 
who  prefer  the  "case-method"  of  study  exclusively. 

A  considerable  portion  of  the  cases  are  chosen  from  those  re- 
ported in  the  American  Decisions,  American  Reports  or  Ameri- 
can State  Reports,  both  because  these  cases  are  in  general  well 
suited  to  the  purpose,  and  because  this  plan  brings  to  the  atten- 
tion of  the  student  the  exhaustive  notes  of  the  editors  of  those 
series  of  cases.  To  these  are  added  leading  Federal  and  English 
cases,  as  well  as  some  others  that  seem  especially  desirable. 

In  general  the  opinions  are  presented  in  full.  In  some  in- 
stances, however,  portions  are  omitted,  because  they  have  no 
bearing  in  bailment  law,  or  contain  references  to  cases  printed 
elsewhere  in  the  volume.  Such  omissions  are  always  indicated. 
The  cases  are  not  edited,  and  but  few  cross-references  are  made. 


'-iG-^^oSS 


iv  PREFACE. 

Those  who  wish  to  find  all  the  material  on  a  given  topic  can  do 
so  by  use  of  the  index  and  of  the  companion  volume,  "Outlines 
of  the  Law  of  Bailments  and  Carriers,"  which  corresponds  chap- 
ter for  chapter  to  this  volume,  and  contains  citations  to  all  the 
Selected  Cases.  In  this  volume  no  other  indication  of  the  sub- 
ject of  any  case  is  given  than  the  general  chapter  heading.  The 
student  will  best  acquire  the  power  of  analysis,  and  ability  to 
see  and  grasp  the  \4tal  points  of  a  case  by  cultivating  inde- 
pendence of  extraneous  aids.  By  such  a  mastery  of  the  cases 
may  be  acquired  mental  power,  and  that  ability  to  apply  abstract 
principles  to  concrete  cases  which  is  so  necessary  a  part  of  the 
equipment  of  a  real  lawyer. 

Edwin  C.  Goddard. 
Ann  Arbor,  July  1, 1904. 


TABLE  OF  CONTENTS 


PART  I 

OF  BAILMENTS  IN  GENERAL. 
CHAPTER  I. 

OP  THE   DEFINITION   AND    CLASSIFICATION    OF   BAILMENTS. 

§§  1-4.    See  also  §  19. 
CHAPTER  II. 

OP  THE  LEGAL  RESULTS  OF  THE  RELATION  IN  GENERAL, 

§§  5-17.    See  also  §§  1,  3,  19,  33,  34,  43,  103,  113,  135. 

PART  II 

OF  ORDINARY  BAILMENTS. 

I.    OF  GRATUITOUS  BAILMENTS. 

CHAPTER  IIL 

A,      OF  GRATUITOUS  SERVICES. 

§§  18-20.    See  also  §§  1,  5,  6,  7,  10,  135. 
CHAPTER  IV. 

B.      OF  GRATUITOUS  LOANS. 

See  §§  1,  3,  8,  10,  14,  15. 

II.    OP  MUTUAL  BENEFIT  BAILMENTS. 

CHAPTER  V. 

CLASSIFICATION  AND  GENERAL  PRINCIPLES. 

See  §§  18,  33. 


VI 


TABLE  OF  CONTENTS. 

CHAPTER  VI. 

A.  PIGNUS,    OE  PLEDGE. 

§§  21-32.    See  also  §§  1,  7,  16,  44. 

B.  LOCATIO,  OR  HIRINQ. 

CHAPTER  VII. 

OF  LOCATIO  REI. 

§§  33-35.    See  also  §§  11,  12,  14,  47. 
CHAPTER  VIII. 

OF  LOCATIO  OPERIS. 

§§  36-49.    See  also  §§  1,  7,  9,  24,  26. 

PART  III 

OF  EXTRAORDINARY  BAILMENTS. 
CHAPTER  IX. 

OF  INNS  AND  INKEEPERS. 

§§  50-61.    See  also  §  40. 

OF  COMMON  CARRIERS. 
CHAPTER  X. 

OP  COMMON  CARRIERS  OF  GOODS. 

§§  62-66.    See  also  §§  53,  55,  85,  95,  96,  103. 
CHAPTER  XI. 

OF   THE  RIGHTS  AND  DUTIES  OP   THE  COMMON   CARRIER. 

§§  67-99.    See  also  §§  1,  35,  46,  49,  62,  66,  100,  106. 
CHAPTER  XII. 

B.      LIABILITY   OF   THE   COMMON   CARRIER  OF   GOODS   UNDER  SPECIAL. 

CONTRACT. 

§§  100-107.    See  also  §§  62,  66,  79,  92,  93,  97,  114. 
CHAPTER  XIII. 

TERMINATION  OF  THE  CARRIER 'S  RELATION. 

§§  108-128.    See  also  §§  46,  49,  68,  77,  78,  80,  81,  88,  97,  107. 


TABLE  OF  CONTENTS.  vii 

PART  IV 

OF  QUASI-BAILEES. 
CHAPTER  XIV. 

OF  CARRIERS  OF  PASSENGERS. 

§§  129-165.    See  also  §§  53,  54,  65,  93,  100,  102,  103,  119,  125. 
CHAPTER  XV. 

OF  CARRIERS  OF  INTELLIGENCE. 

§§  166-176.    See  also  §  185. 

PART  V 

OF  ACTIONS  AGAINST  CARRIERS. 
CHAPTER  XVI. 

OP  ACTIONS  AGAINST  COMMON   CARRIERS  OF  GOODS,   OF  PASSENGERS 
AND   OF   INTELLIGENCE. 

§§  177-186.    See  also  §§  67,  76,  79,  85,  89,  114,  122,  131,  134,  142, 
153,  159,  167,  168,  169,  170,  172,  174. 


TABLE  OF  CASES  REPORTED 


(The  references  are  to  sections.) 

Allen  V.  Delano  (55  Me.  113) 16 

Allen  V.  Maine  Central  Railroad  Co.  (79  Me.  327) 128 

AUen  V.  Sackrider  (37  N.  Y.  341) 63 

American  District  Telegraph  Co.  v.  Walker  (72  Md.  454) 47 

American  Express  Co.  v.  Hockett  (30  Ind.  250) 109 

American  Pig  Iron  etc.  Co.  v.  German  (126  Ala.  194) 23 

Armory  v.  Delamirie  (1  Strange  505) 13 

Auerbach  v.  New  York  Central  Railroad  Co.  (89  N.  Y.  281) 147 

Ayer  v.  Western  Union  Telegraph  Co.  (79  Me.  493) 169 

Ayres  v.  Chicago  &  Northwestern  Railway  Co.  (71  Wis.  372) 85 

Bennett  v.  American  Express  Co.  (83  Me.  236) 92 

Bennett  v.  Byram  (38  Miss.  17) 98 

Bennett  v.  Mellor  (5  T.  R.  273) 57 

Blum  V.  Pullman  Palace  Car  Co.  (1  Flip.  (U.  S.)  500) 54 

Boston  &  Lowell  Railroad  Co.  v.  Proctor  (1  Allen  (Mass.)  267) 148 

Bostwick  V.  Railroad  Co.  (45  N.  Y.  712) 101 

Bowell  V.  DeWald  (2  Ind.  App.  303) 58 

Bretz  V.  Diehl  (117  Pa.  St.  589) 4 

Brien  v.  Bennett  (8  Car.  &  P.  724) 137 

Bricker  v.  Philadelphia  Railroad  Co.    (132  Pa.  St.  1) 130 

Briggs  V.  Boston  &  Lowell  Railroad  Co.  (6  Allen  (Mass.)  246) 77 

BuUard  v.  American  Express  Co.  (107  Mich.  695) 115 

Burdict  v.  Murray  (3  Vt.  302) 41 

Carsten  v.  Northern  Pacific  Railroad  Co.  (44  Minn.  454) 182 

Central  Union  Telephone  Co.  v.  Falley  (118  Ind.  194) 176 

Champion  v.  Bostwick  (18  Wend.  (N.  Y.)  175) 123 

Chicago,  Milwaukee  &  St.  Paul  Railway  Co.  v.  Minnesota  (134  U.  8. 

418)   71 

Chicago  &  Northwestern  Railway  Co.  v.  Jenkins  (lOS  111.  588) 72 

Chicago  &  Northwestern  Railway  Co.  v.  People  (56  111.  365) 80 

Chicago  &  Northwestern  Railway  Co.  v.  Williams  (55  111.  185) 149 

Chicago,  Rock  Island  &  Pacific  Railroad  Co.  v.  Boyce  (73  111.  510) . . .  165 

Christenson  v.  American  Express  Co.  (15  Minn.  270) 66 

Christie  v.  Griggs  (2  Camp.  79) 155 

Claflin  V.  Meyer  (75  N.  Y.  260) 9 

Clark  V.  Burns  (118  Mass.  275) 55 

Cobb  V.  Wallace  (5  Cold.  (Tenn.)  539) 33 

ix 


y  TABLE  OF  CASES  EEPOETED. 

(The  references  are  to  sections.) 

Coggs  V.  Bernard  (2  Ld.  Eay.  909) 1 

Commonwealth  v.  Boston  &  Maine  Eailroad  Co.  (129  Mass.  500) 154 

Condon  v.  Marquette  etc.  Eailroad  Co.   (55  Mich.  218) 126 

Cook  V.  Eailway  Co.  (81  la.  551) 74 

Cooper  V.  Young  (22  Ga.  269) 179 

Curtis  V.  Murphy  (63  Wis.  4) 56 

Cutler  V.  Bonney  (30  Mich.  259) 60 

Davis  V.  Garrett  (6  Bing.  716) 35 

Doane  v.  Eussell  (3  Gray  (Mass.)  382) 45 

Dodge  V.  Boston  &  Bangor  Steamship  Co.  (148  Mass.  207) 157 

Doorman  v.  Jenkins  (2  Ad.  &  Ellis  256) 5 

Doyle  V.  Fitchburg  Eailroad  Co.  (162  Mass.  66) 133 

Dyer  v.  Great  Northern  Eailway  Co.  (51  Minn.  345) 122 

Esmay  v.  Fanning  (9  Barb.  (N.  Y.)  176) 17 

Evans  v.  Fitchburg  Eailroad  Co.  (Ill  Mass.  142) 94 

Express  Cases,  The  (117  U.  S.  1) 86 

f-  Fay  V.  Pacific  Improvement  Co.  (93  Cal.  253) 52 

Ferguson  v.  Anglo-American  Telegraph  Co.  (178  Pa.  St.  377) 184 

Filer  v.  New  York  Central  Eailroad  Co.  (49  N.  Y.  47) 159 

Finn  v.  Western  Eailroad  Corporation  (112  Mass.  524) 177 

Fish  V.  Chapman  (2  Ga.  349) 62 

Fisk  V.  Newton  (1  Denio  (N.  Y.)  45) 108 

Forsee  v.  Alabama  Great  Southern  Eailroad  Co.  (63  Miss.  66) 142 

Forward  v.  Pittard  (1  T.  E.  27) 88 

Foster  v.  Essex  Bank  (17  Mass.  479) 19 

Foster  v.  Metts  (55  Miss.  77) 166 

Frederick  v.  Marquette  etc.  Eailroad  Co.  (37  Mich.  342) 145 

Friedlander  v.  Eailway  Co.  (130  U.  S.  416) 84 

Galena  etc.  Eailroad  Co.  v.  Eae  (18  111.  488) 67 

Geilfuss  V.  Corrigan  (95  Wis.  651) 24 

Geismer  v.  Lake  Shore  &  Michigan  Southern  Eailway  Co.  (102  N. 

Y.   563)    99 

Gemmell  v.  Davis  (75  Md.  546) 28 

Gibson  v.  Sturge   (10  Exch.  622) 75 

Goldberg  v.  Ahnapee  &  Western  Eailway  Co.  (105  Wis.  1) 162 

Gray  v.  Merriam  (148  111.  179) 6 

Green  v.  Boston  &  Lowell  Eailroad  Co.  (128  Mass.  221) 180 

Green  v.  Hollingsworth  (5  Dana  (Ky.)   173) 15 

Grinnell  v.  Cook  (3  Hill  (N.  Y.)  485) 40 

Grinnell  v.  Western  Union  Telegraph  Co.  (113  Mass.  299) 171 

Hale  V,  New  Jersey  Steam  Navigation  Co.  (15  Conn.  539) 64 

Hall  V.  Page  (4  Ga.  428) 22 

Hansen  v.  Flint  &  Pere  Marquette  Eailroad  Co.  (73  Wis.  346) 107 

Harkness  v.  Western  Union  Telegraph  Co.  (73  la.  190) 174 

Hart  V.  Chicago  etc.  Eailway  Co.  (69  la.  485) 87 

Hart  V.  Pennsylvania  Eailroad  Co.  (112  U.  S.  331) 105 


'  TABLE  OF  CASES  REPOKTED.  xi 

(The  references  are  to  sections.) 

Hasse  v.  American  Express  Co.  (94  Mich.  133) 117 

Hawkins  v.  Hoflfman  (6  Hill  (N.  Y.)  586) 119 

Hinkle  v.  Southern  Railway  Co.  (126  N.  C.  932) 97 

Hoar  V.  Maine  Central  Railroad  Co.  (70  Me.  65) 129 

Hollister  v.  Nowlen  (19  Wend.  (N.  Y.)  234) 100 

Houton  V.  Holliday  (2  Murph.  (N.  C.)  Ill) 27 

Huiford  v.  Grand  Rapids  &  Indiana  Railroad  Co.  (64  Mich.  631) 146 

Illinois  Central  Railroad  Co.  v.  Frankenberg  (54  HI.  88) 68 

Ingalls  V.  Bills  (9  Met.  (Mass.)  1) 152 

Jammison  v.  Chesapeake  &  Ohio  Railway  Co.  (92  Va.  327) 156 

Judson  V.  Western  Railroad  Corporation  (4  Allen  (Mass.)  520) 81 

Kansas  Pacific  Railway  Co.  v.  Nichols  (9  Kan.  235) 95 

Kent  V.  Baltimore  &  Ohio  Railroad  Co.  (45  Ohio  St.  284) 143 

Kinsley  v.  Lake  Shore  &  Michigan  Southern  Railway  Co.  (125  Mass. 

54)    164 

Kisten  v.  Hildebrand  (9  B.  Monroe  (Ky.)  72) 50 

Knowles  v.  Railroad  (38  Me.  55) 20 

Krause  v.  Commonwealth  (93  Pa.  St.  418) 2 

Leach  v.  French    (69  Me.  389) 11 

Leavell  v.  Western  Union  Telegraph  Co.  (116  N.  C.  211) 173 

Little  V.  Fossett  (34  Me.  545) 14 

Louisville  etc.  Railway  Co.  v.  Goodykoontz  (119  Ind.  Ill) 181 

Louisville  etc.  Railway  Co.  v.  Wilson  (119  Ind.  352) 69 

McEntee  v.  New  Jersey  Steamboat  Co.  (45  N.  Y.  34) 120 

McMillan  v.  Railroad  Co.  (16  Mich.  79) 114 

Magoffin  V.  Missouri  Pacific  Railway  Co.  (102  Mo.  540) 132 

Maryland  Insurance  Co.  v.  Dalrymple  (25  Md.  242) 32 

Masonic  Savings  Bank  v.  Bang 's  Adm  'r  (84  Ky.  135) 26 

Meier  v.  Pennsylvania  Railroad  Co.  (64  Pa.  St.  225) 153 

Memphis  &  Charleston  Railroad  Co.  v.  Benson  (85  Tenn.  627) 151 

Mentzer  v.  Western  Union  Telegraph  Co.  (93  la.  752) 185 

Michigan  Southern  &  N.  I.  Railroad  Co.  v.  McDonough  (21  Mich.  165)     96 

Moore  v.  New  York  etc.  Railroad  Co.   (173  Mass.  335) 127 

Morganton  Mfg.  Co.  v.  Ohio  River  etc.  Railway  Co.  (121  N.  C.  514) . .     83 

Morningstar  v.   Cunningham    (110   Ind.   328) 48 

Moses  V.  Boston  &  Maine  Railroad  Co.  (32  N.  H.  523) 112 

Moulton  V.  St.  Paul  etc.  Railway  Co.  (31  Minn.  85) 106 

Mowers  v.  Fethers  (61  N.  Y.  34) 51 

Munn  V.  Illinois  (94  U.  S.  113) 70 

Murchison  v.  Sergent  (69  Ga.  206)  61 

Mynard  v.  Syracuse  etc.  Railroad  Co.  (71  N.  Y.  180) 104 

Nashua  Lock  Co.  v.  Worcester  &  Nashua  Railroad  Co.  (48  N.  H.  339)  124 

Newhall  v.  Paige  (10  Gray  (Mass.)   366) 18 

New  Jersey  Steam  Navigation  Co.  v.  Merchants  Bank  (6  How.  (U. 

S.)  344)    79 

New  York  Central  Eailroad  Co.  v.  Fraloff  (100  U.  S.  24) 163 


xii  TABLE  OF  CASES  EEPORTED. 

(The  references  are  to  sections.) 

Norton  v,  Baxter  (41  Minn.  146) 30 

Norway  Plains  Co.  v.  Boston  &  Maine  Railroad  Co.  (1  Gray  (Mass.) 

263)   113 

O'Brien  v.  Boston  etc.  Railway  Co.  (15  Gray  (Mass.)  20) 139 

Orange  County  Bank  v.  Brown  (9  Wend.  (N.  Y.)  85) 93 

O'Rourke  v.  Citizen's  Street  Railway  Co.  (103  Tenn.  124) 141 

Pacific  Express  Co.  v.  Shearer  (160  111.  215) 118 

Pennsylvania  Railroad  Co.  v.  Aspell  (23  Pa.  St.  147) 158 

Pennsylvania  Railroad  Co.  v.  Parry  (55  N.  J.  L.  551) 144 

Pennsylvania  Railroad  Co.  v.  Stern  (119  Pa.  St.  24) 121 

Philadelphia  &  Reading  Railroad  Co.  v.  Derby  (14  How.  (U.  S.)  468)  136 

Pingroe  v.  Railroad  Co.  (66  Mich.  143) 90 

Potts  V.  New  York  &  New  England  Railroad  Co.  (131  Mass.  455) . .  46 

Preston  v.  Prather  (137  U.  S.  604) 7 

Pulliam  v.  Burlingame  (81  Mo.  Ill) 3 

Pullman  Palace  Car  Co.  v.  Smith  (73  111.  360) 53 

Quimby  v.  Vanderbilt  (17  N.  Y.  306) 125 

Railroad  v.  Loekwood  (17  Wall.  (U.  S.)  357) 103 

Railroad  v.  Reeves  (10  Wall.  (U.  S.)  176) 89 

Ranchau  v.  Rutland  Railroad  Co.  (71  Vt.  142) 102 

Robinson  v.  Hurley  (11  la.  410) 31 

Eucker  v.  Donovan  (13  Kan.  251) 78 

Savannah  etc.  Railway  Co.  v.  Pritchard  (77  Ga.  412) 178 

Scheu  V.  Benedict  (116  N.  Y.  510) 110 

Schmidt  v.  Blood  (9  Wend.  (N.  Y.)  268) 43 

Scofiekl  V.  Railway  (43  Ohio  St.  571) 73 

Sears  v.  Eastern  Railroad  Co.  (14  Allen  (Mass.)  433) 161 

Sensenbrenner  v.  Matthews  (48  Wis.  250) 37 

Shaw  V.  Railroad  Co.  (101  U.  S.  557) 49 

Sibley  v.  Aldrich  (33  N.  H.  553) 59 

Sickels  V.  Pattison  (14  Wend.   (N.  Y.)  257) 36 

Small  V.  Robinson  (69  Me.  425) 38 

Spade  V.  Lynn  &  Boston  Railroad  Co.  (168  Mass.  285) 183 

Spooner  v.  Manchester   (133  Mass.  270) 34 

Springer  v.  Ford   (189  111.  430) 160 

Standish  v.  Narragansett  Steamship  Co.  (Ill  Mass.  512) 138 

Stearns  v.  Marsh  (4  Denio  (N.  Y.)  227) 21 

Steamboat  New  World  v.  King  (16  How.  (U.  S.)  469) 135 

Steinman  v.  Wilkins  (7  Watts  &  S.  (Pa.)  466) 42 

Stiles  V.  Davis  (1  Black  (U.  S.)  101) 91 

Sweet  V.  Barney  (23  N.  Y.  335) 116 

Tate  V.  Yazoo  etc.  Railroad  Co.  (78  Miss.  842) 82 

Telegraph  Co.  v.  Griswold  (37  Ohio  St.  301) 167 

Thompson-Houston  Electric  Co.  v.  Simon  (20  Ore.  60) 65 

Thorne  v.  Deas  (4  Johns.  (N.  Y.)  84) 10 

True  V.  International  Telegraph  Co.  (60  Me.  9) 168 


TABLE  OF  CASES  EEPOETED.  xiu 

(The  references  are  to  sections.) 

Union  Freight  Railroad  Co,  v.  Winkley  (159  Mass.  133) 79 

Warren  v.  Fitchburg  Eailroad  Co.  (8  Allen  (Mass.)  227) 131 

Webbe  v.  Western  Union  Telegraph  Co.  (169  111.  610) 170 

Wentworth  v.  McDuffie  (48  N.  H.  402) 12 

West  V.  Western  Union  Telegraph  Co.  (39  Kan.  93) 186 

Western  Union  Telegraph  Co.  v,  Mitchell   (91  Tex.  454) 175 

Western  Union  Telegraph  Co.  v.  VanCleave  (107  Ky.  464) 172 

Whitlock  V.  Heard  (13  Ala.  776) 44 

Williams  v.  Allsup  (10  C.  B.  (N.  S.)  417) 39 

Williams  v.  Oregon  Short  Lino  Railroad  Co.  (18  Utah  210) 134 

Wilson  V.  Brett  (11  Mees.  &  W.  113) 8 

Wilson  V.  Little   (2  N.  Y.  443) 25 

Wright  V.  Bank  of  Metropolis  (110  N.  Y.  237) 29 

Zachery  v.  Mobile  &  Ohio  Railroad  Co.  (74  Miss.  520) 150 

Zagelmeyer  v.  Cincinnati,  Saginaw  &  Mackinaw  Railroad  Co.   (102 

Mich.  214)   140 

Zinn  V.  New  Jersey  Steamboat  Co.  (49  N.  Y.  442) Ill 


SELECT    CASES 

TO  ILLUSTRATE  THE  LAW  OP 

BAILMENTS  AND  CARRIERS 


PART   I 
OF  BAILMENTS  IN  GENERAL 


CHAPTER  I. 

OF    THE    DEFINITION    AND    CLASSIFICATION    OF    BMI.MENTS. 

^1.     COGGS  V.  BERNARD, 
2  Ld.  Raymond  909;  1  Stn.  Lead.  Cas.  199.     1703. 

The  facts  are  stated  in  the  opinion. 

Holt,  C.  J.  The  case  is  shortly  this.  This  defendant  under- 
takes to  remove  goods  from  one  cellar  to  another,  and  there  lay 
them  down  safely ;  and  he  managed  them  so  negligently,  that  for 
want  of  care  in  him  some  of  the  goods  were  spoiled.  Upon  not 
guilty  pleaded,  there  has  been  a  verdict  for  the  plaintiff,  and 
that  upon  full  evidence,  the  cause  being  tried  before  me  at  Guild- 
hall. There  has  been  a  motion  in  arrest  of  judgment,  that  the 
declaration  is  insufficient  because  the  defendant  is  neither  laid 
to  be  a  common  porter,  nor  that  he  is  to  have  any  reward  for 
his  labor,  so  that  the  defendant  is  not  chargeable  by  his  trade, 
and  a  private  person  cannot  be  charged  in  an  action  without  a 
reward. 

I  have  had  a  great  consideration  of  this  ease;  and  because 
some  of  the  books  make  the  action  lie  upon  the  reward,  and 
some  upon  the  promise,  at  first  I  made  a  groat  question  whether 
this  declaration  was  good.  But  upon  consideration,  as  this  dec- 
laration is,  I  think  the  action  will  well  lie.  In  order  to  show  the 
1  1 


§  1  DEFINITION  AND  CLASSIFICATION. 

grounds  upon  which  a  man  shall  be  charged  with  goods  put 
into  his  custody,  I  must  show  the  several  sorts  of  bailments. 
And  there  are  six  sorts  of  bailments.  The  first  sort  of  baibuent 
is,  a  bare  naked  bailment  of  goods,  delivered  by  one  man  to  an- 
other to  keep  for  the  use  of  the  bailor;  and  this  I  call  a  depos- 
itum,  and  it  is  that  sort  of  bailment  which  is  mentioned  in 
Southcote's  case.  The  second  sort  is,  when  goods  or  chattels  that 
are  useful  are  lent  a  friend  gratis,  to  be  used  by  him;  and  this  is 
called  commodatum,  because  the  thing  is  to  be  restored  in  specie. 
The  third  sort  is,  when  goods  are  left  with  the  bailee  to  be  used 
by  him  for  hire;  this  is  called  locatio  et  conductio,  and  the 
lender  is  called  locator,  and  the  borrower  conductor.  The  fourth 
sort  is,  when  goods  or  chattels  are  delivered  to  another  as  a 
pawn,  to  be  a  security  to  him  for  money  borrowed  of  him  by 
the  bailor;  and  this  is  called  in  Latin,  vadium,  and  in  English, 
a  pawn  or  a  pledge.  The  fifth  sort  is,  when  goods  or  chattels  are 
delivered  to  be  carried,  or  something  is  to  be  done  about  them 
for  a  reward  to  be  paid  by  the  person  who  delivers  them  to  the 
bailee,  wiio  is  to  do  the  thing  about  them.  The  sixth  sort  is, 
when  there  is  a  delivery  of  goods  or  chattels  to  somebody  who  is 
to  carry  them,  or  do  something  about  them  gratis,  without  any 
reward  for  such  his  work  or  carriage,  which  is  this  present  case. 
I  mention  these  things,  not  so  much  that  they  are  all  of  them 
so  necessary  in  order  to  maintain  the  proposition  which  is  to  be 
proved,  as  to  clear  the  reason  of  the  obligation  which  is  upon 
persons  in  cases  of  trust. 

As  to  the  first  sort,  where  a  man  takes  goods  in  his  custody 
to  keep  for  the  use  of  the  bailor,  I  shall  consider  for  what  things 
such  a  bailee  is  answerable.  He  is  not  answerahle  if  they  are 
stole  without  any  fault  in  him,  neither  ivill  a  common  neglect 
make  him  chargeable,  but  he  must  he  guilty  of  some  gross  neg- 
lect. There  is,  I  confess,  a  great  authority  against  me;  where 
it  is  held  that  a  general  delivery  will  charge  the  bailee  to  an- 
swer for  the  goods  if  they  are  stolen,  unless  the  goods  are  spe- 
cially accepted  to  keep  them  only  as  you  will  keep  your  own. 
But  my  Lord  Coke  has  improved  the  case  in  his  report  of  it; 
for  he  will  have  it,  that  there  is  no  difference  between  a  special 
acceptance  to  keep  safely,  and  an  acceptance  generally  to  keep. 
But  there  is  no  reason  or  justice,  in  such  a  case  of  a  general 
bailment,  and  where  the  bailee  is  not  to  have  any  reward,  but 
keeps  the  goods  merely  for  the  use  of  the  bailor,  to  charge  him 

2 


COGGS  V.  BEENAED.  §  1 

without  some  default  in  him.  For  if  he  keeps  the  goods  in  such 
a  case  with  an  ordinary  care,  he  has  performed  the  trust  reposed 
in  him.  But  according  to  this  doctrine  the  bailee  must  answer 
for  the  wrongs  of  other  people,  which  he  is  not,  nor  cannot  be 
sufficiently  armed  against.  If  the  law  be  so,  there  must  be  some 
just  and  honest  reason  for  it,  or  else  some  universal  settled  rule 
of  law  upon  wliich  it  is  grounded ;  and  therefore  it  is  incumbent 
upon  them  that  advance  this  doctrine  to  show  an  undisturbed 
rule  and  practice  of  the  law  according  to  this  position.  But  to 
show  that  the  tenor  of  the  law  was  always  otherwise,  I  shall 
give  a  history  of  the  authorities  in  the  books  in  this  matter ;  and 
by  them  show,  that  there  never  was  any  such  resolution  given 
before  Southcote's  case.  The  29  Ass.  28  is  the  first  case  in  the 
books  upon  that  learning;  and  there  the  opinion  is,  that  the 
bailee  is  not  chargeable,  if  the  goods  are  stole.  As  for  8  Edw.  2, 
Fitzh.  Detinue  59,  where  goods  are  locked  in  a  chest,  and  left 
with  the  bailee,  and  the  oAvner  took  away  the  key,  and  the  goods 
were  stolen,  it  was  held  that  the  bailee  should  not  answer  for 
the  goods;  that  case  they  say  differs,  because  the  bailor  did  not 
trust  the  bailee  with  them.  But  I  cannot  see  the  reason  of  that 
difference,  nor  why  the  bailee  should  not  be  charged  with  goods  in 
a  chest,  as  well  as  with  goods  out  of  a  chest;  for  the  bailee  has 
as  little  power  over  them  when  they  are  out  of  a  chest,  as  to  any 
benefit  he  might  have  by  them,  as  when  they  are  in  a  chest ;  and 
he  has  as  great  power  to  defend  them  in  one  case  as  in  the  other. 
The  case  of  9  Edw.  4.  40.  b.  was  but  a  debate  at  bar;  for  Danby 
was  but  a  counsel  then;  though  he  had  been  chief  justice  in  the 
beginning  of  Edw.  4,  yet  he  was  removed,  and  restored  again 
upon  the  restitution  of  Hen.  6,  as  appears  by  Dugdale  's  Chronica 
Series.  So  that  what  he  said  cannot  be  taken  to  be  any  authority, 
for  he  spoke  only  for  his  client ;  and  Genney,  for  his  client,  said 
the  contrary.  The  case  in  3  Hen.  7.  4.  is  but  a  sudden  opinion; 
and  that  but  by  half  the  court ;  and  yet,  that  is  the  only  ground 
for  this  opinion  of  my  Lord  Coke  which  besides  he  has  improved. 
But  the  practice  has  been  always  at  Guildhall,  to  disallow  that 
to  be  a  sufficient  evidence  to  charge  the  bailee.  And  it  was  prac- 
tised so  before  my  time,  all  Chief  Justice  Pemberton's  time,  and 
ever  since,  against  the  opinion  of  that  case.  When  I  read 
Southcote's  case  heretofore,  I  was  not  so  discerning  as  my 
brother  Powys  tells  us  he  was,  to  disallow  that  case  at  first ;  and 
came  not  to  be  of  this  opinion  till  I  had  well  considered  and 

3 


§  1  DEFINITION  AND  CLASSIFICATION. 

digested  that  matter.  Though,  I  must  confess,  reason  is  strong 
against  the  case,  to  charge  a  man  for  doing  such  a  friendly  act* 
for  his  friend ;  but  so  far  is  the  law  from  being  so  unreasonable, 
that  such  a  bailee  is  the  least  chargeable  for  neglect  of  any.  For 
if  he  keeps  the  goods  bailed  to  him  but  as  he  keeps  his  own, 
though  he  keeps  his  own.  but  negligently,  yet  he  is  not  chargeable 
for  them;  for  the  keeping  them  as  he  keeps  his  own  is  an  argu- 
ment of  his  honesty.  A  fortiori,  he  shall  not  be  charged  where 
they  are  stolen  without  any  neglect  in  him.  Agreeable  to  this 
is  Bracton,  lib.  3,  c.  2,  99,  b.  'J.  S.  apud  queni  res  dcponitur,  re 
ohligatur,  et  de  ea  re,  quam  accepit,  rcstituenda  tenetur,  et  etiam 
ad  id,  si  quid  in  re  deposita  dole  commiserit;  cidpae  autem  no- 
mine non  tenetur,  scilicet  desidiae  vel  negligentiae,  quia  qui 
negligenti  arnica  rem  custodiendani  tradit,  sihi  ipsi  et  propriae  fa- 
tuitati  hoc  deiet  imputare.'  As  suppose  the  bailee  is  an  idle, 
careless,  drunken  fellow,  and  comes  home  drunk,  and  leaves 
all  his  doors  open,  and  by  reason  thereof  the  goods  happen  to 
be  stolen  with  his  own. ;  yet  he  shall  not  be  charged,  because  it  is 
the  bailor's  own  folly  to  trust  such  an  idle  fellow.  So  that  this 
sort  of  bailee  is  the  least  responsible  for  neglects,  and  under 
the  least  obligation  of  any  one,  being  bound  to  no  other  care 
of  the  bailed  goods  than  he  takes  of  his  own.  This  Bracton  I 
have  cited  is,  I  confess,  an  old  author;  but  in  this  his  doctrine 
is  agreeable  to  reason,  and  to  what  the  law  is  in  other  countries. 
The  civil  law  is  so,  as  you  have  it  in  Justinian's  Inst.  lib.  3, 
tit.  15.  There  the  law  goes  further;  for  there  it  is  said:  'Ex 
eo  solo  tenetur,  si  quid  dolo  commiserit :  culpae  autem  nomine, 
id  est,  desidiae  ac  negligentiae,  non  tenetur.  Itaque  securus  est 
qui  parum  diligenter  custoditam  rem  furto  amiserit  quia  qui 
negligenti  amico  rem  custodiendam  tradit,  non  ei,  sed  suae  facil- 
itati,  id  imputare  debet.'  So  that  a  bailee  is  not  chargeable 
without  an  apparent  gross  neglect.  And  if  there  is  such  a  gross 
neglect,  it  is  looked  upon  as  an  evidence  of  fraud.  Nay,  sup- 
pose the  bailee  undertakes  safely  and  securely  to  keep  the  goods, 
in  express  words;  yet  even  that  won't  charge  him  with  all 
sorts  of  neglects;  for  if  such  a  promise  were  put  into  writing, 
it  would  not  charge  so  far,  even  then.  Hob.  34,  a  covenant,  that 
the  covenantee  shall  have,  occupy,  and  enjoy  certain  lands,  does 
not  bind  against  the  acts  of  wrongdoers.  3  Cro.  214,  ace,  2  Cro. 
425,  ace,  upon  a  promise  for  quiet  enjoyment.  And  if  a  prom- 
ise will  not  charge  a  man  against  wrongdoers,  when  put  in  writ- 

4 


COGGS  V.  BEENARD.  §  1 

ing,  it  is  hard  it  should  do  it  more  so  when  spoken.  Doct.  and 
Stud.  130  is  in  point,  that  though  a  bailee  do  promise  to  re- 
deliver goods  safely,  yet  if  he  have  nothing  for  the  keeping 
of  them,  he  will  not  be  answerable  for  the  acts  of  a  wrongdoer. 
So  that  there  is  neither  sufficient  reason  nor  authority  to  support 
the  opinion  in  Southeote's  ease.  If  the  bailee  be  guilty  of  gross 
negligence,  he  will  be  chargeable,  but  not  for  any  ordinary  neg- 
lect, -^^    c^^  ji  ''  -'  -■'     " 

■*''  As  to  the  second  sort  of  baibnent,  viz.  commodatum,  or  lending 
gratis,  the  borrower  is  bound  to  the  strictest  care  and  diligence 
to  keep  the  goods,  so  as  to  restore  them  back  again  to  the  lender ; 
because  the  bailee  has  a  benefit  by  the  use  of  them,  so  as  if  the 
bailee  be  guilty  of  the  least  neglect  he  will  be  answerable :  as,  if 
a  man  should  lend  another  a  horse  to  go  westward,  or  for  a 
month;  if  the  bailee  go  northward,  or  keep  the  horse  above  a 
month,  if  any  accident  happen  to  the  horse  in  the  northern  jour- 
ney, or  after  the  expiration  of  the  month,  the  bailee  will  be 
chargeable;  because  he  has  made  use  of  the  horse  contrary  to 
the  trust  he  was  lent  to  him  under ;  and  it  may  be,  if  the  horse 
had  been  used  no  otherwise  than  he  was  lent,  that  accident 
would  not  have  befallen  him.  This  is  mentioned  in  Bracton  uhi 
supra:  his  words  are:  'Is  autem  ciii  res  aliqua  utenda  datur,  re 
oUigatur,  quae  commodata  est,  sed  magna  differentia  est  inter 
mutimm  et  commodatum;  quia  is  qui  rem  mutuam  accepit,  ad 
ipsam  restituendam  tenetur,  vel  ejus  pretium,  si  forte  incendio, 
ruina,  naufragio,  aid  latronum  vel  hostium  incursu,  consumpta 
fuerit,  vel  deperdita,  suhtracta  vel  ahlata.  Et  qui  rem  utendam 
accepit,  non  sufficit  ad  rei  custodiam,  quod  talem  diligentiam 
adhiheat,  qualem  suis  rehus  propriis  adhihere  solet,  si  alius  earn 
diligentius  potuit  custodire;  ad  vim  autem  majorem,  vel  casus 
fortuitos  non  tenetur  quis,  nisi  culpa  sua  intervenerit.  Tit  si  rem 
sihi  commodatum  domi,  secum  detulerit  cum  peregre  profectus 
fuerit,  et  Ulam  incursu  hostium  vel  praedonum,  vel  naufragio, 
amiserit,  non  est  duhium  quin  ad  rei  restitutionem  teneatur.' 
I  cite  this  author,  though  I  confess  he  is  an  old  one,  because  his 
opinion  is  reasonable,  and  very  much  to  my  present  purpose, 
and  there  is  no  authority  in  the  law  to  the  contrary.  But  if  the 
bailee  put  this  horse  in  his  stable,  and  h*'  were  stolen  from 
thence,  the  bailee  shall  not  be  answerable  for  him.  But  if  he  or 
his  servant  leave  the  house  or  stable  doors  open,  and  the  thieves 
take  the  opportunity  of  that  and  steal  the  horse,  he  will  be 

5 


§  1  DEFINITION  AND  CLASSIFICATION. 

chargeable;  because  the  neglect  gave  the  thieves  the  occasion  to 
steal  the  horse.  Bracton  says,  the  bailee  must  use  the  utmost 
care:  but  yet  he  shall  not  be  chargeable,  where  there  is  such  a 
force  as  he  cannot  resist. 

As  to  the  third  sort  of  bailment,  scilicet  locatio,  or  lending  for 
hire,  in  this  case  the  bailee  is  also  bound  to  take  the  utmost  care, 
and  to  return  the  goods  when  the  time  of  the  hiring  is  expired. 
And  here  again  I  must  recur  to  my  old  author,  f ol.  62,  b. :  ' Qui 
pro  usu  vestimentorum  auri  vel  argenti,  vel  alterius  ornamenti, 
vel  jumenti,  merccdem  dederit  vel  promiserit,  talis  ah  eo  deside- 
ratur  custodia,  qualem  diligentissimus  paterfamilias  suis  rebus 
adhibet,  quam  si  praestiterit  et  rem  aliquo  casu  amiserit,  ad  rem 
restituendam  non  tenehitur.  Nee  sufficit  aliquem  talem  diligen- 
tiam  adhihere,  qualem  suis  rebus  propriis  adhiberit,  nisi  talem 
adhibuerit,  de  qua  superius  dictum  est.'  From  whence  it  ap- 
pears, that  if  goods  are  let  out  for  a  reward,  the  hirer  is  bound 
to  the  utmost  diligence,  such  as  the  most  diligent  father  of  a 
family  uses;  and  if  he  uses  that,  he  shall  be  discharged.  But 
every  man,  how  diligent  soever  he  be,  being  liable  to  the  acci- 
dent of  robbers,  though  a  diligent  man  is  not  so  liable  as  a 
careless  man,  the  bailee  shall  not  be  answerable  in  this  case,  if 
the  goods  are  stolen. 

As  to  the  fourth  sort  of  bailment,  viz.  vadium,  or  a  pawn,  in 
this  I  shall  consider  two  things ;  first,  what  property  the  pawnee 
has  in  the  pawn  or  pledge;  and  secondly,  for  what  neglects  he 
shall  make  satisfaction.  As  to  the  first,  he  has  a  special  prop- 
erty, for  the  pawn  is  a  securing  to  the  pawnee,  that  he  shall  be 
repaid  his  debt,  and  to  compel  the  pawnor  to  pay  him.  But  if 
the  pawn  be  such  as  it  will  be  the  worse  for  using,  the  pawnee 
cannot  use  it,  as  clothes,  &c. ;  but  if  it  be  such  as  will  be  never 
the  worse,  as  if  jewels  for  the  purpose  were  pawned  to  a  lady, 
she  might  use  them:  but  then  she  must  do  it  at  her  peril,  for 
whereas,  if  she  keeps  them  locked  up  in  her  cabinet,  if  her  cabinet 
should  be  broke  open,  and  the  jewels  taken  from  thence,  she 
would  be  excused ;  if  she  wears  them  abroad,  and  is  there  robbed 
of  them,  she  will  be  answerable.  And  the  reason  is,  because 
the  pawn  is  in  the  nature  of  a  deposit,  and,  as  such,  is  not 
liable  to  be  used.  And  to  this  efi'ect  is  Ow.  123.  But  if  the 
pawn  be  of  such  a  nature,  as  the  pawnee  is  at  any  charge  about 
the  thing  pawned,  to  maintain  it,  as  a  horse,  cow,  &c.,  then  the 
pawnee  may  use  the  horse  in  a  reasonable  manner,  or  milk  the 

6 


COGGS  V.  BEENAED.  §  1 

cow,  &c.,  in  recompense  for  the  meat.  As  to  the  second  point, 
Bracton,  99.  b.  gives  you  the  answer: — 'Creditor,  qui  pignus  ac- 
cepit,  re  ohligatur,  et  ad  illam  restituendam  tenetur;  et  cum  hu- 
jusmodi  res  in  pignus  data  sit  utriusque  gratia,  scilicet  dehitoris, 
quo  magis  ei  pecunia  crederetur,  et  creditoris  quo  magis  [ei] 
in  tuto  sit  creditum,  swfficit  ad  ejus  rei  custodiam  diligentiam 
exactam  adhihere,  quam  si  praestiterit  et  rem  casu  amiserit,  se- 
curus  esse  possit,  nee  impedietur  creditum  peter e.'  In  effect, 
if  a  creditor  takes  a  pawn,  he  is  bound  to  restore  it  upon  the 
payment  of  the  debt;  but  yet  it  is  sufficient,  if  the  pawmee  use 
true  diligence,  and  he  will  be  indemnified  in  so  doing,  and  not- 
withstanding the  loss,  yet  he  shall  resort  to  the  pawnor  for  his 
debt.  Agreeable  to  this  is  29  Ass.  28,  and  Southcote's  case. 
But,  indeed,  the  reason  given  in  Southcote's  case,  is,  because  the 
pawnee  has  a  special  property  in  the  pawn.  But  that  is  not  the 
reason  of  the  case;  and  there  is  another  reason  given  for  it  in 
the  book  of  Assize,  which  is  indeed  the  true  reason  of  all  these 
cases,  that  the  law  requires  nothing  extraordinary  of  the  pawnee, 
but  only  that  he  shall  use  an  ordinary  care  for  restoring  the 
goods.  But,  indeed,  if  the  money  for  which  the  goods  were 
pawned  be  tendered  to  the  pawnee  before  they  are  lost,  then 
the  pawnee  shall  be  answerable  for  them:  because  the  pawnee, 
by  detaining  them  after  the  tender  of  the  money,  is  a  wrong- 
doer, and  it  is  a  wrongful  detainer  of  the  goods,  and  the  special 
property  of  the  pawnee  is  determined.  And  a  man  that  keeps 
goods  by  wrong  must  be  answerable  for  them  at  all  events ;  for 
the  detaining  of  them  by  him  is  the  reason  of  the  loss.  Upon  the 
same  difference  as  the  law  is  in  relation  to  pawns,  it  will  be 
found  to  stand  in  relation  to  goods  foundi 

As  to  the  fifth  sort  of  bailment,  viz.  a  delivery  to  carry  or 
otherwise  manage,  for  a  reward  to  be  paid  to  the  bailee,  those 
cases  are  of  two  sorts;  either  a  delivery  to  one  that  exercises  a 
public  employment,  or  a  delivery  to  a  private  person.  First,  if  it 
be  to  a  person  of  the  first  sort,  and  he  is  to  have  a  reward,  he  is 
hound  to  answer  for  the  goods  at  all  events.  And  this  is  the  case 
of  the  common  carrier,  common  hoyman,  master  of  a  ship,  &c. : 
which  case  of  a  master  of  a  ship  was  first  adjudged,  26  Car.  2,  in 
the  case  of  Mors  v.  Slue,  Eaym.  220,  1  Vent.  190,  238.  The  law 
charges  this  person  thus  entrusted  to  carry  goods,  against  all 
events,  but  acts  of  God,  and  of  the  enemies  of  the  king.  For 
though  the  force  be  never  so  great,  as  if  an  irresistible  multi- 

7 


§  1  DEFINITION  AND  CLASSIFICATION. 

tude  of  people  should  rob  him,  Djevertheless  he  is  chargeable. 
And  this  is  a  politic  establishment,  contrived  by  the  policy  of 
the  law  for  the  safety  of  all  persons,  the  necessity  of  whose 
affairs  oblige  theni  to  trust  these  sorts  of  persons,  that  they  may 
be  safe  in  their  ways  of  dealing;  for  else  these  carriers  might 
have  an  opportunity  of  undoing  all  persons  that  had  any  deal- 
ings with  them,  by  combining  with  thieves,  &c.,  and  yet  doing  it 
in  such  a  clandestine  manner  as  would  not  be  possible  to  be  dis- 
covered. And  this  is  the  reason  the  law  is  founded  upon  in 
that  point.  The  second  sort  are  bailies,  factors,  and  such  like. 
And  though  a  bailie  is  to  have  a  reward  for  his  management, 
yet  he  is  only  to  do  the  best  he  can;  and  if  he  be  robbed.  &c., 
it  is  a  good  account.  And  the  reason  of  his  being  a  servant,  is 
not  the  thing;  for  he  is  at  a  distance  from  his  master,  and  acts 
at  discretion,  receiving  rents  and  selling  corn,  &c.  And  yet  if 
he  receives  his  master's  money,  and  keeps  it  locked  up  with  a 
reasonable  care,  he  shall  not  be  answerable  for  it,  though  it  be 
stolen.  But  yet  this  servant  is  not  a  domestic  servant,  nor  under 
his  master's  immediate  care.  But  the  true  reason  of  the  case  is, 
it  would  be  unreasonable  to  charge  him  with  a  trust;  farther 
than  the  nature  of  the  thing  puts  it  in  his  power  to  perform  it. 
But  it  is  allowed  in  the  other  cases,  by  reason  of  the  necessity  of 
the  thing.    The  same  law  of  a  factor. 

As  to  the  sixth  sort  of  bailment,  it  is  to  be  taken,  that  the 
bailee  is  to  have  no  reward  for  his  pains,  but  yet  that  by  his 
ill  management  the  goods  are  spoiled.  Secondly,  it  is  to  be 
understood,  that  there  was  a  neglect  in  the  management.  But 
thirdly,  if  it  had  appeared  that  the  mischief  happened  by  any 
person  that  met  the  cart  in  the  way,  the  bailee  had  not  been 
chargeable.  As  if  a  drunken  man  had  come  by  in  the  streets, 
and  had  pierced  the  cask  of  brandy;  in  this  case  the  defendant 
had  not  been  answerable  for  it,  because  he  was  to  have  noth- 
ing for  his  pains.  Then  the  bailee  having  undertaken  to  man- 
age the  goods,  and  having  managed  them  ill,  and  so  by  his  neg- 
lect a  damage  has  happened  to  the  bailor,  which  is  the  case  in 
question,  what  will  you  call  this?  In  Bracton,  lib.  3.  100,  it  is 
called  mandatum.  It  is  an  obligation  which  arises  ex  mandato. 
It  is  what  we  call  in  English  an  acting  by  commission.  And  if 
a  man  acts  by  commission  for  another  gratis,  and  in  the  execut- 
ing his  commission  behaves  himself  negligently,  he  is  answerable. 
Vinnius,  in  his  commentaries  upon  Justinian,  lib.  3.  tit.  27,  684, 


COGGS  V.  BEENAED.  §  1 

defines  mandatum  to  be  contractus  quo  aliquid  gratuito  geren- 
dum  committitur  et  accipitur.  This  undertaking  obliges  the 
undertaker  to  a  diligent  management.  Bracton,  tchi  supra,  says, 
'Contrahitur  etiam  ohligatio  non  solum  scripto  et  verMs, 
sed  et  consensu,  sicut  in  contractihus  honae  fidei;  ut  in 
emptionihus,  venditionibus,  locationibus,  conductionihus,  societa- 
tihus  et  mandatis.'  I  don't  find  this  word  in  any  other  author 
of  our  law,  besides  in  this  place  in  Bracton,  which  is  a  full  au- 
thority, if  it  be  not  thought  too  old.  But  it  is  supported  by  good 
reason  and  authority. 

The  reasons  are,  first,  because,  in  such  a  case,  a  neglect  is  a 
deceit  to  the  bailor.  For,  when  he  entrusts  the  bailee  upon  his 
undertaking  to  be  careful,  he  has  put  a  fraud  upon  the  plain- 
tiff by  being  negligent,  his  pretense  of  care  being  the  persuasion 
that  induced  the  plaintiff  to  trust  him.  And  a  breach  of  a 
trust  undertaken  voluntarily  will  be  a  good  ground  for  an  action. 
1  Roll.  Abr.  10.  2  Hen.  7.  11.  a  strong  case  to  this  matter. 
There  the  case  was  an  action  against  a  man  who  had  undertaken 
to  keep  an  hundred  sheep,  for  letting  them  be  drowned  by  his 
default.  And  there  the  reason  of  the  judgment  is  given,  because 
when  the  party  has  taken  upon  him  to  keep  the  sheep,  and  after 
suffers  them  to  perish  in  his  default ;  inasmuch  as  he  has  taken 
and  executed  his  bargain,  and  has  them  in  his  custody,  if,  after, 
he  does  not  look  to  them,  an  action  lies.  For  here  is  his  own  act, 
viz.,  his  agreement  and  promise,  and  that  after  broke  of  his  side, 
that  shall  give  a  sufficient  cause  of  action. 

But,  secondly,  it  is  objected,  that  there  is  no  consideration  to 
ground  this  promise  upon,  and  therefore  the  undertaking  is  but 
nudum  pactum.  But  to  this  I  answer,  that  the  owner's  trust- 
ing Mm  with  the  goods  is  a  sufjficient  consideration  to  oUige  him 
to  a  careful  management.  Indeed  if  the  agreement  had  been 
executory,  to  carry  these  brandies  from  the  one  place  to  the 
other  such  a  day,  the  defendant  had  not  been  bound  to  carry 
them.  But  this  is  a  different  case,  for  assumpsit  does  not  only 
signify  a  future  agreement,  but  in  such  a  case  as  this  it  signifies 
an  actual  entry  upon  the  thing,  and  taking  the  trust  upon  him- 
self. And  if  a  man  will  do  that,  and  miscarries  in  the  perform- 
ance of  his  trust,  an  action  will  lie  against  him  for  that,  though 
nobody  could  have  compelled  him  to  do  the  thing.  The  19  Hen. 
6.  49.  and  the  other  cases  cited  by  my  brothers,  show  that  this 
is  the  difference.     But  in  the  11  Hen.  4.  33.  this  difference  is 

9 


§  1  DEFINITION  AND  CLASSIFICATION. 

clearly  put,  and  that  is  the  only  ease  concerning  this  matter 
which  has  not  been  cited  by  my  brothers.  There  the  action  was 
brought  against  a  carpenter,  for  that  he  had  undertaken  to  build 
the  plaintiff  a  house  within  such  a  time,  and  had  not  done  it, 
and  it  was  adjudged  the  action  would  not  lie.  But  there  the 
question  was  put  to  the  court — what  if  he  had  built  the  house 
unskilfully  ? — and  it  is  agreed  in  that  case  an  action  would  have 
lain.  There  has  been  a  question  made.  If  I  deliver  goods  to  A., 
and  in  consideration  thereof  he  promise  to  re-deliver  them,  if 
an  action  will  lie  for  not  re-delivering  them;  and  in  Yelv.  4, 
judgment  was  given  that  the  action  would  lie.  But  that  judg- 
ment was  afterwards  reversed;  and,  according  to  that 
reversal,  there  was  judgment  afterwards  entered  for  the  defend- 
ant in  the  like  case,  Yelv.  128.  But  those  cases  were  grmnbled 
at;  and  the  reversal  of  that  judgment  in  Yelv.  4,  was  said  by 
the  judges  to  be  a  bad  resolution ;  and  the  contrary  to  that  re- 
versal was  afterwards  most  solemnly  adjudged  in  2  Cro.  667. 
Tr.  21  Jac.  1.  in  the  King's  Bench,  and  that  judgment  affirmed 
upon  a  writ  of  error.  And  yet  there  is  no  benefit  to  the  defend- 
ant, nor  no  consideration  in  that  case,  but  the  having  the  money 
in  his  possession,  and  being  trusted  with  it,  and  yet  that  was 
held  to  be  a  good  consideration.  And  so  a  bare  being  trusted 
with  another  man's  goods  must  be  taken  to  be  a  sufficient  con- 
sideration, if  the  bailee  once  enter  upon  the  trust,  and  take  the 
goods  into  his  possession.  The  declaration  in  the  case  of  Mors 
V.  Slue,  was  drawn  by  the  greatest  drawer  in  England  in  that 
time ;  and  in  that  declaration,  as  it  was  always  in  all  such  cases, 
it  was  thought  most  prudent  to  put  in,  that  a  reward  was  to  be 
paid  for  the  carriage.  And  so  it  has  been  usual  to  put  it  in  the 
writ,  where  the  suit  is  by  original.  I  have  said  thus  much  in 
this  case,  because  it  is  of  great  consequence  that  the  law  should 
be  settled  in  this  point;  but  I  don't  know  whether  I  may  have 
settled  it,  or  may  not  rather  have  unsettled  it.  But  however 
that  happen,  I  have  stirred  these  points,  which  wiser  heads  in 
time  may  settle.    And  judgment  was  given  for  the  plaintiff. 


JO 


KRAUSE  V.  COMMONWEALTH.  §2 

2.     KRAUSE  V.  COIMMONWEALTH, 

93  Pa.  St.  418;  39  Am.  R.  762.    1880. 

Conviction  of  larceny.  The  indictment  contained  two  counts : 
1.  Larceny ;  2.  Larceny  by  bailee.  Upon  a  plea  of  former  acquit- 
tal on  the  first  count  there  was  trial  and  conviction  on  the  second. 
It  appeared  that  defendant  agreed  to  purchase  of  one  Deemer 
two  horses  for  $150,  to  be  paid  on  delivery.  They  were  deliv- 
ered, but  as  defendant  had  only  $25  they  were  not  paid  for,  and 
it  was  agreed  that  the  defendant  should  pay  the  $25,  keep  the 
horses,  and  have  until  the  following  Tuesday  to  pay  the  balance 
or  return  the  horses,  the  title  meantime  to  remain  in  Deemer. 
Krause  did  not  pay  on  Tuesday.  On  the  following  Thursday 
the  horses  disappeared,  having  been  sold,  or  converted  by  Krause 
to  his  own  use.  Deemer  offered  to  return  the  $25  and  demanded 
his  horses,  but  Krause  refused  to  deliver  them  back. 

Trunkey,  J.  (After  stating  the  facts)  :  Ha^ving  acquitted  the 
defendant  of  larceny  of  the  horses,  the  Commonwealth  put  him 
to  another  trial  and  convicted  him  of  larceny,  in  stealing  the  same 
horses,  under  section  108  of  the  Crimes  Act  of  1860.  Villainous  as 
his  conduct  was,  this  conviction  ought  not  to  stand,  unless  he  was 
a  bailee  within  the  intendment  of  the  act.  The  word  "bailee"  is 
a  legal  term,  to  be  understood  in  its  generally  accepted  sense 
among  jurists,  and  if  it  be  doubtful  whether  a  case  be  included 
it  shall  be  excluded,  in  the  constriiction  of  a  criminal  statute. 
Blackstone  defines  bailment  as  "a  delivery  of  goods  in  trust 
upon  a  contract,  express  or  implied,  that  the  trust  shall  be  faith- 
fully executed  on  the  part  of  the  bailee;"  Story,  "a  delivery  of 
a  thing  in  trust  for  some  special  object  or  purpose,  and  upon  a 
contract,  express  or  implied,  to  conform  to  the  object  or  purpose 
of  the  trust;"  Jones,  "a  delivery  of  goods  in  trust  on  a  con- 
tract, express  or  implied,  that  the  trust  shall  be  duly  executed, 
and  the  goods  re-delivered  as  soon  as  the  time  or  use  for  which 
they  were  bailed  shall  have  elapsed  or  be  performed;"  and  Kent, 
"a  delivery  of  goods  in  trust  upon  a  contract,  expressed  or  im- 
plied, that  the  trust  shall  be  duly  executed,  and  the  goods  re- 
stored to  the  bailee,  as  soon  as  the  purpose  of  the  bailment  shall 
be  answered."  Mr.  Edwards,  in  his  work  on  Bailment,  §  2,  re- 
marks: These  definitions  agree  in  nearly  all  essential  particu- 
lars, and  disagree  in  two  or  three  respects.     Jones  and  Kent 

11 


§  2  DEFINITION  AND  CLASSIFICATION. 

assume  the  property  is  to  be  returned,  wliile  Blackstone  and 
Story  include  contracts  under  wliicli  no  such  return  is  contem- 
plated. Story  intends  to  include  among  contracts  of  bailment 
a  delivery  of  goods  for  sale ;  and  Kent  intentionally  limits  his 
definition  so  as  to  exclude  that  species  of  contract.  "In  general 
terms  it  may  be  said  that  the  delivery  of  goods  or  any  other 
species  of  personal  estate  for  use,  keeping,  or  on  some  other 
trust,  where  the  general  property  does  not  pass,  creates  a  bail- 
ment. A  delivery  of  chattels  upon  a  sale  made  on  condition 
that  the  title  shall  pass  on  the  payment  of  the  purchase-money 
at  a  future  day,  is  something  more  than  a  bailment;  it  gives 
the  buyer  a  conditional  title.  If  the  contract  give  the  buyer  a 
definite  credit  or  a  reasonable  time  within  which  to  pay,  it  gives 
him  a  transferable  interest  in  the  chattels  until  the  credit  ex- 
pires, and  the  property  in  them  as  soon  as  he  pays  the  price." 

Authors  of  received  authority  generally  specify  five  sorts  of 
bailment,  namely,  deposit um,  mandatum,  commodatuni,  pledge 
and  hiring ;  and  as  severally  defined,  in  each  the  entire  property 
of  the  thing  bailed  remains  in  the  bailor,  the  possession  only  is 
given  to  the  bailee,  who  is  to  return  or  deliver  the  thing  itself  as 
soon  as  the  purpose  of  the  bailment  shall  be  answered.  In  this 
State  it  is  settled  that  the  bailee  of  goods,  who  uses  and  enjoys 
them  as  if  his  own,  cannot  divest  the  title  of  the  bailor  by  a  sale 
to  an  innocent  person ;  nor  can  a  creditor  of  the  bailee  seize  them 
in  executiop  of  his  debt.  When  delivered  under  a  contract  of 
bailment,  the  owner  will  be  entitled  to  them  against  everybody. 
But  a  delivery  on  a  conditional  sale,  the  property  to  remain  in 
the  vendor  until  the  goods  are  paid  for,  with  right  to  reclaim 
them,  is  void  as  respects  the  vendee's  creditors,  or  an  innocent 
purchaser  from  him.  The  delivery  being  on  the  foot  of  a  pur- 
chase, the  vendor's  right,  as  against  the  vendee's  creditors,  is  re- 
garded as  a  lien  for  the  purchase-money.  Chamberlain  v.  Smith, 
44  Penn.  St.  431;  Haak  v.  Linderman,  64  Penn.  St.  499;  3 
"Am.  Rep.  612.  By  the  terms  of  the  contract  the  seller  may  re- 
tain the  right  of  property  in  the  goods  till  paid  for,  as  against 
the  purchaser,  and  in  default  of  payment,  he  may  reclaim  them, 
or  use  civil  remedies  for  recovery  of  possession;  but  the  con- 
tract does  not  make  him  a  bailor,  as  respects  other  persons,  nor 
the  purchaser  a  bailee  in  the  sense  of  the  word  as  used  in  the 
statute. 

Our   statute,   as   shown   by  Eead,   J.,   in   Commonwealth   v. 

12 


KEAUSE  V.  COMMONWEALTH.  §  2 

Chathams,  50  Penn.  St.  181,  is  taken  from  the  English  statute ; 
and  in  that  case  the  interpretation  of  the  words  "bailee"  and 
"baibnent,"  as  fixed  by  the  English  decisions,  was  adopted, 
which  decisions  were  cited,  showing  that  the  words  must  be  in- 
terpreted according  to  their  ordinary  legal  acceptation,  that  "bail- 
ment relates  to  something  in  the  hands  of  the  bailee,  which  is  to 
be  returned  in  specie,  and  does  not  apply  to  the  case  of  money 
in  the  .hands  of  a  party  who  is  not  under  any  obligation  to  re- 
turn it  in  precisely  the  identical  coins  which  he  originally  re- 
ceived;" that  "to  bring  a  case  within  this  clause,  in  addition 
to  the  fraudulent  disposal  of  the  property,  it  must  be  proved: 
First:  That  there  was  such  a  delivery  of  the  property  as  to 
divest  the  owner  of  the  possession,  and  vest  it  in  the  prisoner 
for  some  time;  Secondly.  That  at  the  expiration  or  determina- 
tion of  that  time  the  same  identical  property  was  to  be  restored 
to  the  owner." 

The  term  "bailee"  is  one  to  be  used,  not  in  its  large  but  in  its 
limited  sense,  as  including  simply  those  bailees  who  are  author- 
ized to  keep,  to  transfer,  or  to  deliver,  and  who  receive  the  goods 
hona  fide,  and  then  fraudulently  convert.  Where  it  does  not  ap- 
pear that  a  fiduciary  duty  is  imposed  on  the  defendant  to  return 
the  specific  goods  of  which  the  alleged  bailment  is  composed,  a 
bailment  under  the  statutes  is  not  constituted.  Whart.  Crim.  Law, 
§  1855  (8th  ed). 

The  bargain  was  struck  for  a  sale  of  the  horses  for  $150,  pay- 
able on  delivery.  At  the  time  stipulated  Deemer  delivered  the 
horses,  Krause  paid  $25,  they  agreed  that  the  property  should 
continue  in  Deemer,  and  on  the  next  Tuesday  Krause  would  pay 
the  balance  or  return  the  horses.  He  refused  to  do  either.  The 
original  contract  was  not  changed — time  was  extended  to  Krause 
to  enable  him  to  pay  the  money.  If  there  was  a  deliveiy  at  all, 
it  was  on  the  footing  of  the  sale.  There  wa?  no  agreement  to 
sell  at  a  future  time— a  mere  contract  that  the  buyer  would  pay 
the  balance  of  the  price  or  return  the  property,  in  the  mean- 
time the  title  to  be  in  the  seller.  Payment  would  have  been  a 
complete  performance.  Krause  was  not  bound  to  return  the 
identical  property.  He  had  a  transferable  interest  until  the 
credit  expired,  and  he  or  his  transferee  would  have  had  clear 
title  the  instant  of  payment.  This  was  something  more  than  a 
bailment,  and  Krause  was  not  a  bailee  in  the  statutory  sense. 
In  favor  of  the  liberty  of  the  citizen,  the  court  may,  and  in  a 

13 


§§  2,  3  DEFINITION  AND  CLASSIFICATION. 

proper  case  should,  declare  the  evidence  insufficient  to  convict. 
Pauli  V.  Commonwealth,  89  Penn.  St.  432.  We  are  of  opinion 
that  the  defendant's  first  point  should  have  been  affirmed. 

Judgment  reversed,  and  the  record,  with  this  opinion  setting 
forth  the  causes  of  reversal,  is  remanded  to  the  Court  of  Quarter 
Sessions  of  Lehigh  county  for  further  proceeding. 

Judgment  accordingly. 


3.    PULLIAM  V.  BURLINGAME, 
81  Mo.  Ill;  51  Am.  R.  229.   1883. 

Martin,  C.  The  plaintiff  brought  an  action  of  replevin  in 
the  Circuit  Court  for  the  recovery  of  two  mules,  alleging  that  he 
was  "the  owner  of,  and  entitled  to  the  immediate  possession  of" 
the  same.  The  defendant  in  answer  made  a  general  denial  of 
the  facts  alleged  in  the  petition.  The  case  was  tried  by  the 
court,  a  jury  being  waived  by  the  parties. 

Plaintiff  offered  testimony  tending  to  prove  that  he  was  the 
owner  and  in  possession  of  the  mules  in  controversy ;  that  about 
the  month  of  February,  1880,  defendant  borrowed  said  mules 
from  plaintiff,  but  said  nothing  then  about  his  wife's  interest 
in  or  claim  to  same.  That  defendant  held  said  mules,  until 
they  were  taken  out  of  his  possession  under  the  writ  in  this 
cause. 

The  defendant  then  offered,  and  the  court  heard  testimony 
tending  to  show  that  Martha  E.  Burlingame  was  the  sister  of 
plaintiff,  and  wife  of  defendant;  that  she  owned  jointly  with 
plaintiff  an  undivided  half  interest  in  said  mules  at  the  time 
they  were  borrowed  by  her  husband,  and  also  at  the  time  they 
were  taken  from  defendant  under  the  writ  aforesaid.  De- 
fendant also  introduced  evidence  showing  that  he  was  in  pos- 
session of  said  mules  at  the  time  they  were  replevied  in  this 
cause,  as  the  agent  of  his  wife ;  that  he  was  simply  holding  the 
same  with  and  for  his  wife,  by  reason  of  her  half  interest  afore- 
said.   This  was  all  the  testimony  offered. 

The  court,  at  the  instance  of  plaintiff,  declared  the  law  as 
follows : 

"If  the  court,  sitting  as  a  jury,  believe  from  the  evidence  that 
the  defendant  borrowed  the  mules  from  the  plaintiff  and  refused 
to  return  them  to  him  when  so  requested,  the  court  will  find  the 
right  of  possession  in  the  plaintiff. ' ' 

14 


PULLIAM  V.  BUKLINGAME.  §  3 

The  defendant  requested  the  court,  which  the  latter  refused 
to  do,  to  declare  the  law  as  follows : 

"If  the  court,  sitting  as  a  jury,  believe  from  the  evidence 
that  at  the  time  of  the  service  of  the  writ  herein,  said  defendant 
was  the  husband  of  one  Martha  E.  Burlingame ;  that  said  Martha 
E.  Burlingame  was,  at  said  date,  the  joint  o^^^aer^  with  plaintiff, 
of  the  mules  in  controversy,  and  that  said  defendant  was  in  pos- 
session of,  and  holding  the  same  with  and  for  his  wife,  then  the 
court  should  find  the  issue  for  defendant. ' ' 

The  court  found  the  issues  for  the  plaintiff,  and  rendered  its 
judgment  in  due  form  accordingly. 

[Omitting  minor  point.] 

The  next  inquiry  is,  whether  the  defendant  could  make  this 
defense  of  paramount  title  in  his  wife,  in  face  of  the  contract  of 
bailment  by  which  he  acquired  possession  of  the  mules. 

The  admitted  evidence  in  the  case  is,  that  he  borrowed  them 
from  the  plaintiff*,  and  that  at  the  time  he  so  borrowed  and  re- 
ceived them,  he  made  no  mention  of  any  claim  in  favor  of  him- 
self or  his  wife.  I  have  examined  this  question  with  a  scrutiny 
which  has  not  been  confined  to  the  briefs  of  counsel,  and  I  am 
unable  to  reach  any  other  conclusion  than  that  the  defendant 
is  estopped  from  making  the  defense  by  reason  of  the  contract 
under  which  he  acquired  possession  of  the  property  in  dispute 
from  the  plaintiff.  In  borrowing  the  mules  he  became  a  bailee 
of  them  like  any  other  borrower.  There  being  no  time  fixed 
for  a  termination  of  the  bailment,  that  time  could  be  indicated 
at  any  moment  by  the  bailor.  It  was  determinable  at  his  option, 
and  when  so  terminated,  it  was  the  duty  of  the  bailee  to  return 
the  property  bailed  to  the  bailor.  The  contract  of  bailment 
necessarily  admits  the  right  of  property  in  the  bailor,  and  the 
obligation  to  return  it  to  him  at  the  termination  of  the  term  of 
bailment.  In  other  words,  a  bailee,  when  he  receives  the  prop- 
erty by  virtue  of  the  bailment,  legally  admits  the  right  of  the 
bailor  to  make  the  contract  of  bailment.  After  this  subservient 
relation  of  the  defendant  to  the  plaintiff  in  respect  to  the  prop- 
erty was  established,  the  law  forbids  him  to  dispute  the  title 
of  plaintiff.  The  relation  is  analogous  to  that  which  exists  be- 
tween landlord  and  tenant,  a  relation  which  prevents  the  tenant 
from  setting  up  against  his  landlord,  either  an  outstanding  or 
self -acquired  adverse  title ;  and  from  attorning  to  a  stranger  with- 
out the  consent  of  his  landlord,  or  in  pursuance  of  a  judgment 

15 


§  3  DEFIXITIOX  AND  CLASSIFICATION. 

or  sale  under  execution  or  deed  of  trust,  or  forfeiture  under 
mortgage.  Stagg  v.  Eureka  Tanning,  etc.,  Co.,  56  Mo.  317;  R. 
S.  1879,  §  3080 ;  McCartney  v.  Auer,  50  Mo.  395.  This  rule  does 
not  prevent  the  tenant  from  showing  that  the  landlord  has 
parted  with  his  title,  for  such  fact  would  npt  be  inconsistent 
with  the  title  admitted  by  the  demise.  Higgins  v.  Turner,  61 
Mo.  249. 

In  pursuing  the  analogy  of  these  principles  in  the  law  of  real 
estate,  Mr,  Edwards,  in  his  work  on  Bailment,  says:  "The  law 
always  aids  the  true  owner  to  recover  his  property;  and  it  is  a 
general  rule  that  the  bailee  cannot  dispute  the  title  of  his  bailor, 
"When  therefore  the  bailee  is  applied  to  for  the  property  by  a 
third  party  claiming  title,  his  prudent  course  is,  to  leave  the 
claimant  to  his  action,  and  at  once  notify  his  bailor  of  the  suit; 
he  is  not  obliged  to  bear  the  burden  of  a  litigation;  and  it  is 
not  safe  for  him  to  surrender  the  property  on  demand.  For 
nothing  will  excuse  a  bailee  from  the  duty  to  restore  the  prop- 
erty to  his  bailor,  except  he  show  that  it  was  taken  from  him 
by  due  process  of  law,  or  by  a  person  having  the  paramount  title, 
or  that  the  title  of  his  bailor  has  terminated."  Edwards  Bail- 
ments (2d  Ed.),  §  73;  Welles  v,  Thornton,  45  Barb,  390;  Bates 
V.  Stanton,  1  Duer  79 ;  Blivin  v.  R.  Co.,  36  N.  Y,  403 ;  Burton  v. 
Wilkinson,  18  Vt,  186;  46  Am.  Dec.  145;  Aubery  v.  Fiske,  36 
N.  Y,  47 ;  McKay  v.  Draper,  27  N.  Y.  256 ;  Sinclair  v.  Murphy, 
14  Mich.  392;  Osgood  v.  Nichols,  5  Gray,  420;  The  Idaho,  93 
U.  S.  575. 

Mr.  Bigelow,  in  his  work  on  Estoppel,  says :  ' '  The  relation  be- 
tween bailor  and  bailee  is  analogous  to  that  of  landlord  and  ten- 
ant. Until  something  equivalent  to  title  paramount  has  been 
asserted  against  a  bailee,  he  will  be  estopped  to  deny  the  title 
of  his  bailor  to  the  goods  intrusted  to  him."  Bigelow  Estoppel 
(3d  ed.),  430.  The  principle  upon  which  he  can  relieve  himself 
from  the  obligation  to  return  the  goods  is  ably  discussed  by 
Justice  Strong  in  the  "Idaho"  case,  93  U.  S.  575,  wherein  he 
announces  the  doctrine,  that  an  actual  delivery  of  the  goods  by 
the  bailee  to  the  true  owner,  upon  his  demand  for  them,  will 
constitute  a  valid  defense  against  the  claim  of  the  bailor.  The 
same  principle  was  applied  by  this  court  in  the  case  of  Matheny 
V.  Mason,  73  Mo,  677;  39  Am.  Rep.  541,  which  was  a  suit 
between  vendor  and  vendee  for  the  consideration  money  of 
the  goods  sold.     The  subject  was  ably  and  elaborately  consid- 

16 


PULLIAM  V.  BUELINGAME.  §  S 

ered  by  Judge  Ray,  who  rendered  the  opinion  of  the  court.  The 
vendor  was  suing  for  the  price  of  corn  sold,  with  implied  war- 
ranty of  title,  and  the  vendee,  in  his  answer,  after  admitting  the 
sale  and  consideration  price,  pleaded  that  at  the  time  of  the 
sale  he  supposed  the  vendor  was  the  owner  of  the  corn;  that 
after  the  sale  and  delivery,  he  learned  that  it  belonged  to  a 
third  party,  named  in  the  plea ;  that  said  third  party  demanded 
of  him  payment  for  the  same,  and  threatened  suit  if  he  refused ; 
that  thereupon  he  paid  the  full  value  thereof  to  said  claimant, 
who  was  the  true  owner.  It  was  also  added,  that  the  vendor 
was  insolvent.  This  plea  was  held  sufficient  to  rebut  and  over- 
throw the  estoppel  imposed  on  a  vendee  from  denying  the  title 
of  his  vendor  when  called  upon  for  the  purchase-money.  In 
the  opinion  significamce  was  given  to  the  facts,  that  the  para- 
mount title  came  first  to  the  knowledge  of  the  vendee  after  the 
sale ;  that  said  title  was  asserted  by  threats  of  suit ;  and  that  the 
money  was  actually  paid  over  to  the  claimant  before  suit  by  the 
vendor.  Now,  if  it  requires  such  a  defense  to  relieve  the  estop- 
pel imposed  upon  a  vendee,  a  fortiori  the  same,  or  an  equivalent, 
will  be  necessary  in  the  case  of  a  bailee.  It  has  long  been  set- 
tled in  this  State  that  the  relation  of  a  vendor  and  vendee,  as 
to  real  estate,  is  antagonistic,  and  that  the  vendee  is  not  estopped 
from  setting  up  an  outstanding  or  after-acquired  title.  Wil- 
coxon  V.  Osborn,  77  Mo.  621.  The  estoppel  between  them  is 
recognized  only  in  respect  to  the  purchase-money.  In  a  suit  for 
it,  the  vendee  is  estopped  from  pleading  want  of  title  in  the 
vendor,  as  long  as  he  retains  possession  of  the  land.  Mitchell 
V.  McMullen,  59  Mo.  252 ;  Harvey  v.  Morris,  63  Mo.  475 ;  Wheeler 
V.  Standley,  50  Mo.  509. 

The  relation  of  bailor  and  bailee  is  not  antagonistic  in  any 
respect,  or  at  any  time.  By  accepting  the  property  he  not  only 
admits  the  bailor's  title,  but  he  assumes,  with  respect  to  the 
thing  bailed,  a  position  of  trust  and  confidence,  which  continues 
till  it  is  returned  or  lawfully  accounted  for.  Measured  by  these 
principles,  the  defendant's  evidence  must  fail  to  excuse  him 
from  the  obligation  to  return  the  borrowed  property  found  in 
his  possession  at  the  time  of  the  replevin.  It  does  not  appear 
that  his  wife,  as  paramount  claimant,  ever  asserted  any  title 
to  this  property.  Consequently  his  plea  that  he  holds  it  as 
agent  for  his  wife,  implies  that  this  is  his  voluntary  act,  and 
was  not  forced  upon  him  by  the  assertion  in  any  form  of  her 
2  17 


§^  3,  4  DEFINITION  AND  CLASSIFICATION. 

pretended  title.  It  will  not  do  for  a  bailee  to  hunt  up  a  para- 
mount claimant,  and  then  when  called  upon  by  the  bailor  for 
the  property,  answer  that  he  is  now  the  voluntary  bailee  of  such 
claimant.  It  must  be  apparent  that  this  would  enable  him  to 
enjoy  the  property  by  pretending  to  hold  it  for  another.  Jus- 
tice Strong  in  the  ''Idaho"  case  remarks,  "a  bailee  cannot 
avail  himself  of  the  title  of  a  third  person  (though  the  person 
be  the  true  owner)  for  the  purpose  of  keeping  the  property  for 
himself,  not  in  any  case  where  he  has  not  yielded  to  the  para- 
mount title."    93  U.  S.  575. 

The  evidence  in  this  case  shows  that  the  defendant,  at  the 
time  of  the  replevin,  was  in  actual  possession  of  the  mules  which 
he  borrowed,  and  that  his  plea  of  being  the  agent  or  bailee 
of  a  paramount  owner  rests  upon  his  voluntary  act  alone,  with- 
out suit,  threat  or  demand  of  such  owner  or  claimant. 

Although  the  cases  in  which  the  doctrine  of  jus  tertii  is  de- 
fined and  enforced  are  somewhat  conflicting,  I  am  not  aware 
of  any  well-considered  expression  which  goes  to  the  length  of 
justifying  the  defense,  as  it  appears  in  the  evidence  and  instruc- 
tions of  this  case. 

Accordingly  I  am  of  the  opinion  that  the  court  did  not  err 
in  refusing  it,  or  in  giving  the  one  asked  by  plaintiff.  The 
judgment  should  be  affirmed,  and  it  is  so  ordered. 

Judgment  affirmed. 

All  concur. 

4.    BRETZ  V.  DIEHL, 
117  Pa.  St.  589;  2  Am.  St.  R.  706.    1888. 

Feigned  issue  under  sheriff's  interpleader  act  to  determine 
ownership  of  flour  and  bran.    The  opinion  states  the  facts. 

By  Court,  Clark,  J.  The  defendants  in  this  case  are  judg- 
ment creditors  of  "William  D.  Newman,  a  miller,  oper- 
ating a  steam  flouring  mill  in  the  town  of  Bedford.  Having 
issued  executions,  they  levied  on  some  eighty  or  ninety  barrels 
of  flour,  and  some  bran  found  on  the  floor  of  Newman's  mill. 
The  plaintiffs  claimed  the  property  levied  upon,  alleging  that 
it  was  the  product  of  grain  by  them  delivered  to  and  held  by 
Newman  as  their  bailee.  This  is  a  feigned  issue,  framed  under 
the  sheriff's  interpleader  act,  to  determine  the  dispute. 

The  plaintiffs,  who  are  farmers  residing  in  the  vicinity  of  Bed- 

18 


BRETZ  V.  DIEHL.  §  4 

ford,  brought  their  grain  to  this  mill;  no  special  contract  or  ar- 
rangement was  made  with  the  miller  by  any  of  the  plaintiffs 
when  they  delivered  their  wheat,  but,  in  accordance  with  the 
practice  of  the  mill  in  all  cases,  except  when  wheat  was  at  once 
paid  for,  a  receipt  or  memorandum  was  given  in  the  following 
form : — 

Crystal.  Mills,  Bedford,  Pa.,  Sept.  12,  1884. 
Received  from  D.  W.  Lee : — 

Amount. 

Four  hundred  and  fifty-five  14-60  b.  wheat $455.14 

"  rye, 
"  corn, 

Two  hundred  and  fifty-five  12-32  "  oats 255.12 

"  buckwheat. 
For  use  of  self.  W.  D.  Newman. 

The  mill  was  not  arranged  to  keep  the  several  lots  of  grain 
in  separate  parcels.  It  was  so  constructed  that  all  the  grain 
delivered  into  it  was  hoisted  to  the  second  floor,  emptied  into  a 
sink  on  the  first  floor,  and  from  thence  carried  by  elevators  into 
a  bin  on  the  third  floor,  where,  at  times,  there  was  a  large  accu- 
mulated mass  of  wheat.  Newman  also  purchased  wheat  in  con- 
siderable quantities  from  time  to  time,  which  was  delivered  into 
the  mill,  and  disposed  of  as  the  other  wheat.  This  promiscuous 
commingling  of  the  grain  into  a  common  mass  was  in  accord- 
ance with  the  known  usage  of  the  mill,  which  was  supplied  for 
grinding  from  the  mass  of  the  wheat,  without  any  discrimina- 
tion as  to  the  several  lots  or  parcels  in  which  it  was  received. 
The  miller,  was,  of  course,  under  no  obligation  to  restore  to 
the  plaintiffs  the  specific  or  identical  wheat  which  he  received, 
nor  the  product  of  it  in  flour ;  indeed,  this,  owing  to  the  manner 
in  which  the  business  was  conducted,  was  practically  impossible. 

The  fundamental  distinction  between  a  bailment  and  a  sale  is, 
that  in  the  former  the  subject  of  the  contract,  although  in  an 
altered  form,  is  to  be  restored  to  the  owner ;  whilst  in  the  latter 
there  is  no  obligation  to  return  the  specific  article;  the  party 
receiving  it  is  at  liberty  to  return  some  other  thing  of  equal 
value  in  place  of  it.  In  the  one  case  the  title  is  not  changed,  in 
the  other  it  is,  the  parties  standing  in  the  relation  of  debtor  and 
creditor.  Thus  in  Norton  v.  Woodruff,  2  N.  Y.  153,  a  miller 
agreed  to  take  certain  wheat,  and  to  give  one  barrel  of  superfine 
flour  for  every  4  36-60  bushels  thereof,  the  flour  to  be  delivered 

19 


§  4  DEFINITION  AND  CLASSIFICATION. 

at  a  fixed  time,  or  as  much  sooner  as  he  could  make  it.  As  the 
miller's  contract  was  satisfied  by  a  delivery  of  flour  from  any 
wheat,  the  transaction  was  held  to  be  a  sale.  But  in  Mallroy  v. 
Willis,  4  Id.  76,  wheat  was  delivered  under  a  contract  "to  be 
manufactured  into  flour,"  and  one  barrel  of  the  flour  was  to  be 
delivered  for  every  4  15-60  bushels  of  wheat;  this  transaction 
was  by  the  same  court  held  to  be  a  bailment. 

If  a  party  having  charge  of  the  property  of  others  so  con- 
founds it  with  his  own  that  the  line  of  distinction  cannot  be 
traced,  all  the  inconvenience  of  the  confusion  is  thrown  upon 
the  party  who  produces  it;  where,  however,  the  owners  consent 
to  have  their  wheat  mixed  in  a  common  mass,  each  remains  the 
owner  of  his  share  in  the  common  stock.  If  the  wheat  is  de- 
livered in  pursuance  of  a  contract  for  bailment,  the  mere  fact 
that  it  is  mixed  with  a  mass  of  like  quality,  with  the  knowledge 
of  the  depositor  or  bailor,  does  not  convert  that  intcf  a  sale 
which  was  originally  a  bailment,  and  the  bailee  of  the  whole  can, 
of  course,  have  no  greater  control  of  the  mass  than  if  the  share 
of  each  were  kept  separate.  If  the  commingled  mass  has  been 
delivered  on  simple  storage,  each  is  entitled  on  demand  to  re- 
ceive his  share;  if  for  conversion  into  flour,  to  his  proper  pro- 
portion of  the  product:  Chase  v.  Washburn,  1  Ohio  St,  244; 
59  Am.  Dec.  623 ;  Hutchison  v.  Commonwealth,  82  Pa.  St.  472. 
It  makes  no  difl'erence  that  the  bailee  had,  in  like  manner,  con- 
tributed to  the  mass  of  his  own  wheat;  for  although  the  abso- 
lute owner  of  his  own  share,  he  still  stands  as  a  bailee  to  the 
others,  and  he  cannot  abstract  more  than  that  share  from  the 
common  stock  without  a  breach  of  the  bailment,  which  will  sub- 
ject him  not  only  to  a  civil  suit,  but  also  to  a  criminal  prosecu- 
tion :    Hutchison  v.  Commonwealth,  supra. 

But  where,  as  in  Chase  v.  Washburn,  supra,  the  understand- 
ing of  the  parties  was  that  the  person  recei\ang  the  grain  might 
take  from  it  or  from  the  flour  at  his  pleasure,  and  appropriate 
the  same  to  his  own  use,  on  the  condition  of  his  procuring  other 
wheat  to  supply  its  place,  the  dominion  over  the  property  passes 
to  the  depositary,  and  the  transaction  is  a  sale,  and  not  a  bail- 
ment. To  the  same  efi'ect  are  Schindler  v,  Westover,  99  Ind. 
395;  Richardson  v.  Olmstead,  74  111.  213;  Bailey  v.  Bensley, 
87  Id.  556 ;  and  Johnston  v.  Browne,  37  Iowa,  200.  In  Lyon  v. 
Lenon,  106  Ind.  567,  the  distinction  is  thus  stated:  "If  the 
dealer  has  the  right,  at  his  pleasure,  either  to  ship  and  sell  the 

20 


BEETZ  V.  DIEHL.  §  4 

same  on  his  own  account,  and  pay  the  market  price  on  demand, 
or  retain  and  redeliver  the  wheat,  or  other  wheat  in  the  place 
of  it,  the  transaction  is  a  sale.  It  is  only  when  the  bailor  re^ 
tains  the  right  from  the  beginning  to  elect  whether  he  will  de- 
mand the  redelivery  of  his  property,  or  other  of  like  quality 
and  grade,  that  the  contract  will  be  considered  one  of  bailment. 
If  he  surrender  to  the  other  the  right  of  election,  it  will  be  con- 
sidered a  sale,  with  an  option  on  the  part  of  the  purchaser  to  pay 
either  in  money  or  property,  as  stipulated.  The  distinction  is: 
Can  the  depositor,  by  his  contract,  compel  a  delivery  of  wheat, 
whether  the  dealer  is  willing  or  not?  If  he  can,  the  transac- 
tion is  a  bailment.  If  the  dealer  has  the  option  to  pay  for  it  in 
money  or  other  wheat,  it  is  a  sale."  This  distinction  is  drawn, 
of  course,  with  reference  to  cases  where  grain  is  deposited  in  a 
mass,  as  in  grain  elevators,  etc. 

There  are  cases  in  which  the  doctrine  of  bailment  has  been 
carried  much  beyond  the  rule  recognized  in  the  cases  we  have 
cited :  See  Sexton  v.  Graham,  53  Iowa,  181 ;  4  N.  W.  R.  1090, 
and  Nelson  v.  Brown,  53  Id.  555,  5  N.  W.  R.  719.  We  think, 
however,  the  rule  recognized  in  Chase  v.  Washburn,  supra,  and 
Lyon  V.  Lenon,  supra,  is  a  safe  one,  and  is  more  in  accord  ■c'/ith 
the  well-settled  principles  of  the  law  relating  to  bailment.     . 

But  in  the  case  at  bar,  we  are  not  called  upon  to  say  what 
would  be  the  effect  upon  the  transaction  if  Newman  had  au- 
thority, in  the  regular  course  of  dealing,  to  ship  or  sell  the 
wheat  of  his  customers  on  his  own  account.  Undoubtedly  he 
had  a  right  to  sell  of  the  grain  or  flour  to  the  extent  of  his  own 
share;  that  is  to  say,  what  he  contributed  to  the  common  stock 
and  the  tolls  to  which  he  was  entitled.  But  the  jury  has  found 
that  he  had  no  authority  whatever  to  sell  or  to  abstract  from 
the  common  stock  beyond  the  amount  to  which  he  was  himself 
entitled.  In  the  general  charge,  and  also  in  the  answers  to  the 
points  submitted,  the  learned  court  instructed  the  jurors  in  the 
clearest  manner  that  if  they  should  find  from  the  evidence  that 
Newman,  by  the  nature  of  his  dealings  with  the  several  plain- 
tiffs, had  acquired  such  dominion  over  their  wheat  as  authorized 
him,  at  his  pleasure,  not  only  to  grind  it  into  flour,  but  also  to 
sell  the  same  for  his  own  use,  the  transaction  must  necessarily 
be  treated  as  a  sale,  and  that,  in  that  event,  the  plaintiffs  could 
not  recover.  This  instruction  was  repeated  with  marked  em- 
phasis several  times  during  the  progress  of  the  charge,  and  it 

21 


§  4  DEFINITION  AND  CLASSIFICATION. 

seems  quite  impossible  that  the  jury  could  have  labored  under 
any  misapprehension  as  to  the  nature  of  the  inquiry  they  were 
to  make.  The  verdict  of  the  jury  was  for  the  plaintiffs ;  and  we 
must  assume  the  facts  which  it  is  plain  the  jury,  in  arriving 
at  such  a  verdict,  must  have  found,  viz.,  that  Newman  had  no 
authority  to  sell  the  grain  delivered  into  his  mill  under  the  ar- 
rangement with  the  plaintiffs, — that  is  to  say,  their  share  of 
the  common  stock,  nor  the  flour  which  was  the  product  thereof. 
It  was  the  plain  duty  of  Newman,  however,  to  see  to  it  that  at 
all  times  the  mill  contained  wheat  or  flour  sufficient  in  amount 
to  answer  all  demands  under  the  bailment;  failing  in  this,  he 
was  derelict  in  duty,  and  liable,  under  the  law,  for  the  appro- 
priation and  conversion  unto  his  own  use  of  property  which 
did  not  belong  to  him. 

Nor  do  we  see  that  the  court  committed  any  error  in  the 
answers  to  the  plaintiffs'  points.  These  points,  according  to 
the  general  practice,  were  based  upon  an  assumption  of  facts, 
the  truth  or  falsity  of  which  was  for  the  jury,  and  the  law  was 
stated  as  upon  a  finding  of  these  facts  by  the  jury.  They  were 
relevant  to  the  issue ;  they  disclosed  clearly  the  specific  facts 
assumed,  which  were  fairly  and  reasonably  consistent  with  the 
plaintiffs'  theory  of  the  case  upon  the  evidence,  and  the  opin- 
ion of  the  court  thereon  could  not  have  had  any  weight  with 
the  jurors  in  their  deliberations,  unless  the  facts  assumed  were, 
in  their  judgment,  established  by  the  proofs.  The  points  cer- 
tainly were  not  such  as  could  be  disregarded  by  the  court,  and 
we  cannot  see  how  the  answers  thereto  could  be  supposed  to 
have  misled  the  jury. 

The  learned  court  defined  a  bailment  and  a  sale,  marking 
the  distinguishing  features  of  each,  and  as  the  nature  of  the 
transaction  depended  not  wholly  upon  the  written  receipt,  but 
in  part  on  verbal  evidence  as  to  the  method  of  conducting  the 
business,  the  question  was  undoubtedly  one  proper  to  be  sub- 
mitted to  the  jury.  The  court  instructed  the  jury  that  if  cer- 
tain facts  existed,  the  transaction  was  a  sale;  otherwise  it  was 
but  a  bailment;  and  the  question  was  proper  for  the  jury 
whether  or  not,  under  the  instruction  of  the  court,  according 
to  the  facts  as  the  jury  might  find  them,  the  transaction  was  a 
bailment  or  a  sale. 

On  a  careful  review  of  the  whole  case,  we  find  no  error,  and 
the  judgment  is  affirmed. 

22 


CHAPTER  U. 

OP  THE  LEGAL  RESULTS  OF  THE  RELATION  IN  GENERAL. 

5.     DOORMAN  V.  JENKINS, 
2  Ad.  &  Ellis  256;  29  E.  C.  L.  80.    1834. 

Assumpsit.    On  the  trial  before  Denman,  C.  J.,  at  the  London 
sittings  in  December,  1833,  the  plaintiff. proved  the  delivery  of 
the  money  to  the  defendant  for  the  purpose  of  the  bill  being  taken 
up  as  alleged  in  the  declaration.    The  defendant  was  the  proprie- 
tor of  a  coffee-house,  and  the  account  which  he  was  proved  to  have 
given  of  the  loss  was  as  follows :— That  he  unfortunately  placed 
the  money  in  his  cash-box,  which  was  kept  in  the  tap-room; 
that  the  tap-room  had  a  bar  in  it ;  that  it  was  open  on  a  Sunday, 
but  that  the  other  parts  of  the  premises,  which  were  inhabited 
by  the  defendant  and  his  family,  were  not  open  on  Sunday ;  and 
that  the  cash-box,  with  the  plaintiff's  money  in  it,  and  also  a 
much  larger  sum  belonging  to  the  defendant,  was  stolen  from 
the  tap-room  on  a  Sunday.    The  defendant  did  not  pay  the  bill 
when  presented.     The  defendant's  counsel  contended  that  there 
was  no  case  to  go  to  the  jury,  inasmuch  as  the  defendant,  be- 
ing a  gratuitous  bailee,  was  liable  only  for  gross  negligence; 
and  the  loss  of  his  own  money,  at  the  same  time  as  the  plain- 
tiff's, shewed  that  the  loss  had  not  happened  for  want  of  such 
care  as  he  would  take  of  his  own  property.     The  Lord  Chief 
Justice  refused  to  nonsuit  the  plaintiff',  but  took  a  note  of  the 
objection.     The  defendant  called  no  witnesses.     His  Lordship 
told  the  jury  that  it  did  not  follow  from  the  defendant's  hav- 
ing lost  his  own  money  at  the  same  time  as  the  plaintiff's,  that 
he  had  taken  such  care  of  the  plaintiff's  money  as  a  reason- 
able man  would  ordinarily  take  of  his  own ;  and  he  added,  that 
the  fact  relied  upon  was  no  answer  to  the  action,  if  they  believed 
that  the   loss  occurred   from  gross  negligence:   but  his  Lord- 
ship then  said  that  the  evidence  of  gross  negligence  was  not,  in 
his  opinion,  satisfactory.    Verdict  for  the  plaintiff.    In  Hilary 
term  last,  Sir  James  Scarlett  obtained  a  rule  to  shew  cause 

23 


§  5  LEGAL  KESULTS  OF  BAILMENT  EELATION. 

why  the  verdict  should  not  be  set  aside,  and  a  nonsuit  be  entered, 
or  a  new  trial  be  had. 

Taunton  J.  I  have  felt  some  doubt  in  this  case;  but,  after 
the  best  consideration  I  can  give  it,  I  think  the  rule  ought  not 
to  be  made  absolute.  The  counsel  for  the  plaintiff  properly 
admitted  that,  as  this  bailment  was  for  the  benefit  of  the  bailor, 
and  no  remuneration  was  given  to  the  bailee,  the  action  would 
not  be  maintainable,  except  in  the  case  of  gross  negligence. 
The  sole  question,  therefore,  is,  whether  there  was  any  proof  of 
such  negligence.  If  there  was,  the  application  for  a  nonsuit, 
at  any  rate,  cannot  be  granted;  and  it  is  almost  (though  not 
quite)  equally  clear  that  the  defendant  must  be  bound  by  the 
decision  to  which  the  jury  has  come.  A  great  deal  has  been 
said  on  the  point,  whether  the  existence  of  gross  negligence  is  a 
question  of  law  or  fact.  It  is  not  necessary  to  enter  into  that 
as  an  abstract  question.  Such  a  question  will  always  depend 
upon  circumstances.  There  may  be  cases  where  the  question 
of  gross  negligence  is  matter  of  law  more  than  of  fact,  and 
others  where  it  is  matter  of  fact  more  than  of  law.  An  action 
brought  against  an  attorney  for  negligence  turns  upon  matter 
of  law  rather  than  fact.  It  charges  the  attorney  with  having 
undertaken  to  perform  the  business  properly,  and  alleges  that, 
from  his  failure  so  to  do,  such  and  such  injuries  resulted  to  the 
plaintiff.  Now,  in  nineteen  cases  out  of  twenty,  unless  the 
Court  told  the  jury  that  the  injurious  results  did,  in  point  of 
law,  follow  from  the  misconduct  of  the  defendant,  they  would 
be  utterly  unable  to  form  a  judgment  on  the  matter.  Yet,  even 
there,  the  jury  have  to  determine  whether,  in  point  of  fact,  the 
defendant  has  been  guilty  of  that  particular  misconduct.  On 
the  other  hand,  take  the  case  of  an  action  against  a  surgeon, 
for  negligence  in  the  treatment  of  his  patient.  What  law  can 
there  possibly  be  in  the  question,  whether  such  and  such  con- 
duct amounts  to  negligence  ?  That  must  be  determined  entirely 
by  the  jury.  Without,  therefore,  laying  down  any  abstract 
rule,  we  may,  I  think,  with  perfect  safety  say  that,  in  the  pres- 
ent case,  the  question  was  entirely  for  the  jury.  It  is  fact,  not 
law.  The  circumstances  are  extremely  simple.  The  defeiMant 
receives  money  to  be  kept  for  the  plaintiff.  What  care  does  he 
exercise?  He  puts  it,  together  with  money  of  his  own  (which 
I  think  perfectly  immaterial),  into  the  till  of  a  public-house. 

24 


DOOEMAN  V.  JENKINS.  §  5 

We  might  certainly  have  had  more  explicit  evidence  as  to  the 
exact  state  of  the  box;  in  what  place  it  was;  and  what  class 
of  strangers  frequented  the  room.  If  there  was  no  negligence, 
if  the  box  was  locked  up  and  put  in  a  safe  place,  and  proper 
care  taken  of  it,  these  were  circumstances  which  the  defendant 
had  the  best  means  of  knowing,  and,  knowing  them,  he  might 
have  exonerated  himself. .  In  the  absence,  therefore,  of  evi- 
dence to  that  effect,  I  think  that  there  was  a  prima  facie  case 
of  gross  negligence,  which  required  an  answer  on  the  defendant 's 
part.  The  phrase  "gross  negligence"  means  nothing  more  than 
a  great  and  aggravated  degree  of  negligence,  as  distinguished 
from  negligence  of  a  lower  degree.  The  case  of  Shiells  v.  Black- 
burne,  1  H.  Bl.  158,  created  at  first  some  degree  of  doubt  in  our 
minds.  It  was  said  that  the  Court,  in  that  case,  treated  the  mat- 
ter as  a  question  of  law,  and  set  aside  the  verdict,  because  the 
thing  charged,  the  false  description  of  the  leather  in  the  entry, 
did  not  amount  to  gross  negligence ;  and  therefore  the  jury  had 
mistaken  the  law.  I  do  not  view  the  case  in  that  light.  The  jury 
there  found,  that  in  fact  the  defendant  had  been  guilty  of  negli- 
gence; but  the  Court  thought  that  they  had  drawn  a  wrong 
conclusion  as  to  that  fact.  The  case,  therefore,  does  not  stand 
against  the  conclusion  to  which  I  have  come.  It  does  not  ap- 
pear certainly  from  the  report,  how  the  case  was  treated  at 
the  trial,  nor  what  the  Judge  said  in  summing  up.  But  I  do 
not  find  it  laid  down,  as  a  rule,  that  in  every  case  the  question 
of  negligence  is  to  be  matter  of  law.  The  ordinary  practice  is, 
to  leave  it  to  the  jury,  whether  such  negligence  has  been  proved 
as  the  plaintiff  has  charged  in  his  declaration.  If  the  negligence 
so  charged  be  insufficient  to  give  a  right  of  action,  the  defend- 
ant may  move  in  arrest  of  judgment. 

Patteson  J.  It  is  agreed  on  all  hands  that  the  defendant  is 
not  liable,  unless  he  has  been  guilty  of  gross  negligence.  The 
difficulty  lies  in  determining  what  is  gross  negligence,  and 
whether  that  is  to  be  decided  by  the  jury  or  the  Court.  If  the 
Court  is  to  decide  it,  and  no  evidence  has  been  given  that  satis- 
fies the  Court,  there  ought  to  have  been  a  nonsuit.  If  the  jury 
was  to  decide,  I  cannot  feel  a  doubt  that  there  was  some  evidence 
for  them.  I  agree  that  the  onus  prohandi  was  on  the  plaintiff. 
It  appeared,  by  the  evidence  of  what  the  defendant  has  said, 
that  the  money  committed  to  his  charge  was  laid  in  a  box  in 

25 


§  5  LEGAL  EESULTS  OF  BAILMENT  EELATION. 

the  tap  room,  which  room  was  open  on  a  Sunday,  though  the 
rest  of  the  premises  were  not.  Under  these  circumstances,  there 
can  be  no  nonsuit;  for  there  was  a  sufficient  case  to  go  to  the 
jury.  Whether,  in  the  abstract,  the  question  of  negligence  be 
for  the  jury  or  the  Court,  I  think  it  unnecessary,  as  my  brother 
Taunton  says,  to  determine.  The  present,  at  all  events,  was 
a  question  of  fact,  and  therefore  for  the  jury.  The  general 
question  I  approach  with  much  diffidence.  I  do  not  know  any 
thing  more  difficult,  than  to  say,  in  mixed  questions  of  law  and 
fact,  what  is  for  the  Court,  and  what  for  the  jury.  In  the 
present  case,  the  principal  doubt  in  my  mind  arose  from  the 
case  of  Shiells  v.  Blackburne,  1  H.  Bl.  158.  The  facts  in  that 
case  were  not  disputed.  It  appeared  that  the  defendant,  being 
employed  (without  reward)  to  send  out  some  dressed  leather, 
entered  it  at  the  Custom  House,  together  with  some  dressed 
leather  of  his  own,  as  wrought  leather,  in  consequence  of  which 
the  whole  was  seized.  Whether  that  amounted  to  gross  negli- 
gence, must  have  been  a  question  for  the  jury.  The  report  does 
not  say  how  they  were  directed,  nor  whether  the  Judge  told  them 
that,  in  his  opinion,  it  was  gross  negligence.  At  first,  I  con- 
ceived that  nothing  appeared  from  the  report,  except  that  the 
Court  thought  it  was  a  case  of  gross  negligence.  But,  on  looking 
into  the  case,  I  find  the  Court  thought  that  the  jury  had  found 
the  fact  erroneously,  and  sent  the  issue  to  another  jury.  So  that, 
in  the  present  case,  the  only  remaining  question  is,  whether  the 
Judge  left  the  question  properly.  At  first,  I  understood  that  the 
question  left  had  been,  whether  the  defendant  had  used  ordinary 
and  reasonal)le  care,  which,  although  it  may  be  a  useful  criterion 
in  determining  the  question  whether  there  has  been  gross  negli- 
gence, is  certainly  not  the  same  question.  But  it  seems  that 
his  lordship  left  it  to  them  to  say,  whether  there  had  been  gross 
negligence ;  and  that  what  he  said  respecting  ordinary  care, 
was  merely  by  way  of  illustration.  We  cannot,  therefore,  dis- 
turb the  verdict.  Whether  I  should  have  found  the  same  ver- 
dict, is  quite  immaterial. 

Lord  Denman  C,  J.  It  appeared  to  me  that  some  degree  of 
negligence  was  clearly  proved  in  the  first  instance.  I  thought, 
and  I  still  think,  it  impossible  for  a  judge  to  take  upon  himself 
to  say  whether  negligence  is  gross  or  not.  I  agree  to  all  the 
legal  doctrine  in  Shiells  v.  Blackburne,  1  H.  Bl.  158,  which  is, 

26 


GEAY  V.  MEKKIAM.  §§  5,  6 

merely,  that  a  bailee  without  reward  is  not  liable  to  an  action 
without  proof  of  gross  negligence.  I  do  not  find  a  word  there  to 
the  effect  that  the  judge  is  to  say  whether,  in  fact,  negligence  is 
gross  or  not.  I  certainly  did  not  take  the  view  which  the  jury 
did  of  this  case,  and  I  pressed,  as  strongly  as  possible,  my  opin- 
ion upon  them.  Whether,  if  I  had  heard  all  they  said  to  each 
other,  and  had  possessed  all  their  experience,  I  should  have 
changed  my  opinion,  I  cannot  say;  but  certainly  the  question 
was  for  them.  Williams,  J.  also  rendered  a  concurring  opinion. 
Rule  discharged. 


6.     GRAY  V.  MERRIAM. 

148  III.  179;  35  N.  E.  R.  810;  39  Am.  St.  R.  172.    1893, 

Action  by  I\Ierriam  for  the  value  of  fifteen  bonds  left  with 
defendant  bankers  for  safe  keeping.  The  facts  are  stated  in  the 
opinion. 

Magruder,  J.  The  main  error  assigned  is  the  giving  of  the 
first  instruction  .given  by  the  trial  court  for  the  plaintiff.  It 
is  claimed  by  plaintiff  in  error  that  the  defendant  bankers  were 
gratuitous  bailees,  holding  the  bonds  in  controversy  as  a  special 
deposit  for  safekeeping  without  reward.  The  general  rule  is, 
that  a  gratuitous  bailee  is  liable  only  for  gross  negligence :  Story 
on  Bailments,  9th  ed.,  sees.  62,  79;  Schouler  on  Bailments  and 
Carriers,  2d  ed.,  sec.  35 ;  Skelley  v.  Kahn,  17  111.  170.  The  in- 
structions for  both  plaintiff  and  defendants  require  the  jury  to 
find  that  the  defendants  were  guilty  of  gross  negligence  in  the 
keeping  of  the  bonds  as  a  condition  to  the  right  of  recovery. 
But  the  objection  made  to  plaintiff' 's  instruction  is  the  definition 
which  it  gives  of  gross  negligence  in  the  use  of  the  following 
clause:  "The  want  of  ordinary  and  reasonable  care  is  in  law 
termed  gross  negligence."  Gross  neligence  has  been  defined  to 
be  the  absence  or  want  of  slight  care  or  diligence:  Story  on 
Bailments,  sees.  62,  64;  Schouler  on  Bailments  and  Carriers, 
sees.  15,  35;  Michigan  Cent.  R.  R.  Co.  v.  Carrow,  73  111.  348; 
24  Am.  Rep.  248;  Chicago  etc.  R.  R.  Co.  v.  Johnson,  103  111. 
512.  But  the  portions  of  the  instruction  which  precede  and 
follow  said  clause  are  in  harmony  with  much  of  the  language 
used  in  the  text-books  and  decisions.     Schouler,  in  his  recent 

27 


§  6  LEGAL  EESULTS  OF  BAILMENT  EELATION. 

work  on  Bailments  and  Carriers,  section  35,  after  announcing 
that  the  gratuitous  bailee  is  liable  only  for  slight  care  and  dili- 
gence, according  to  the  circumstances,  and  cannot  be  held  for 
loss  or  injury,  unless  grossly  negligent,  says:  "This  statement 
of  the  rule,  though  strongly  buttressed  upon  authority,  fails 
at  this  day  of  universal  approval  in  our  jurisprudence.  .  .  . 
'Slight,'  'ordinary,'  and  'great'  are  terms  they  (some  courts) 
wish  to  see  discarded,  and  they  prefer  judging  of  each  case  by 
its  own  complexion."  The  same  author  states  that  in  the  main 
gross  negligence  is  a  question  of  fact  upon  all  the  evidence  for 
the  jury,  and  that  what  constitutes  slight  diligence  or  gross 
negligence  will  depend  in  each  case  upon  a  variety  of  circum- 
stances, such  as  the  occupation,  habits,  skill,  and  general  char- 
acter of  the  bailee,  and  local  custom  and  business  usage :  Schouler 
on  Bailments  and  Carriers,  sees.  49,  50.  Story,  after  stating 
the  rule  that  when  the  bailment  is  for  the  sole  benefit  of  the 
bailor,  the  law  requires  only  slight  diligence  on  the  part  of  the 
bailee,  subsequently  adds  that,  in  every  case,  good  faith  requires 
a  bailee,  without  reward,  to  take  reasonable  care  of  the  deposit ; 
"and  what  is  reasonable  care  must  materially  depend  upon  the 
nature,  value,  and  quality  of  the  thing,  the  circumstances  under 
which  it  is  deposited,  and  sometimes  upon  the  character  and 
confidence  and  particular  dealings  of  the  parties ' ' :  Story  on 
Bailments,  sees.  23,  62. 

In  Smith  v.  First  Nat.  Bank,  99  Mass.  605,  97  Am.  Dee.  59, 
which  was  an  action  against  a  bank  for  the  conversion  or  loss, 
by  gross  negligence,  of  valuable  articles  deposited  with  it  as 
a  bailee  without  hire,  the  court  said:  "This  was  a  gratuitous 
bailment.  The  defendants  are  liable  only  for  want  of  ordi- 
nary care." 

A  deposit  is  a  naked  bailment  of  goods  to  be  kept  for  the 
bailor  without  recompense,  and  to  be  returned  when  the  bailor 
shall  require  it,  while  a  mandate  is  a  bailment  of  goods  without 
reward,  to  be  carried  from  place  to  place,  or  to  have  some  act 
performed  about  them:  Story  on  Bailments,  sees.  4,  5.  But  a 
mandatary,  like  a  depositary,  is  said  to  be  bound  only  to  slight 
diligence,  and  responsible  only  for  gross  neglect:  Story  on 
Bailments,  sec.  174.  In  Skelley  v.  Kahn,  17  III.  170,  we  held  that 
"a  mandatary  or  bailee  who  undertakes,  without  reward,  to  take 
care  of  the  pledge,  or  perform  any  duty  or  labor,  is  required 
to  use  in  its  performance  such  care  as  men  of  common  sense 

28 


GRAY  V.  MEEEIAM.  §  6 

and  common  prudence,  however  inattentive,  ordinarily  take  of 
their  own  affairs,  and  they  mil  be  liable  only  for  bad  faith,  or 
gross  negligence,  which  is  an  omission  of  that  degree  of  care." 

The  liability  of  banks,  acting  as  bailees,  without  reward,  in 
the  care  of  special  deposits,  has  been  recently  considered  in  the 
case  of  Preston  v.  Prather,  137  U.  S.  604;  11  Sup.  Ct.  R.  162; 
and  it  was  there  held  that  such  bailees  are  bound  to  exercise  such 
reasonable  care  as  men  of  common  prudence  usually  bestow  for 
the  protection  of  their  own  property  of  a  similar  character ;  that 
the  exercise  of  reasonable  care  is  in  all  such  cases  the  dictate  of 
good  faith;  and  that  the  care  usually  and  generally  deemed 
necessary  in  the  community  for  the  security  of  similar  property, 
under  like  conditions,  would  be  required  of  the  bailee  in  such 
cases,  but  nothing  more.  Gross  negligence,  as  applied  to  grat- 
uitous bailees,  is  defined  in  that  case  to  be  "nothing  more  than 
a  failure  to  bestow  the  care  which  the  property  in  its  situa- 
tion demands";  and  the  court  further  says:  "The  omission  of 
the  reasonable  care  required  is  the  negligence  which  creates  the 
liability,  and  whether  this  existed  is  a  question  of  fact  for  the 
jury  to  determine." 

In  the  light  of  these  more  liberal  views  as  to  the  liabilities 
of  bailees  without  reward,  we  think  that  the  clause  in  question, 
when  considered  in  connection  with  the  rest  of  the  instruction, 
could  only  have  been  understood  by  the  jury  as  referring  to 
the  want  of  such  ordinary  and  reasonable  care  as  was  designated 
in  the  previous  part  of  the  instruction,  that  is  to  say,  the  care 
usually  and  generally  deemed  necessary  in  the  community  for 
the  security  of  similar  property  under  like  circumstances.  The 
rule,  that  a  gratuitous  bailee  is  responsible  only  for  the  want  of 
care  which  is  taken  by  the  most  inattentive,  cannot  be  applied 
to  all  cases  of  bailment  without  reward.  When  securities  are 
deposited  with  banks  accustomed  to  receive  such  deposits,  they 
are  liable  for  any  loss  thereof  occurring  through  the  want  of 
that  degree  of  care  which  good  business  men  should  exercise 
in  keeping  property  of  such  value:  Bank  v.  Zent,  39  Ohio  St. 
105 ;  16  Am.  &  Eng.  Ency.  of  Law,  160,  206. 

But  if  it  be  conceded  that  the  definition  of  gross  negligence 
in  the  clause  above  quoted,  even  when  considered  in  connec- 
tion with  the  balance  of  the  instruction,  is  technically  inaccu- 
rate, it  does  not  follow  that  plaintiff  in  error  is  entitled  to  a  re- 
versal of  the  judgment  in  this  case.     A  judgment  will  not  be 

29 


§  6  LEGAL  EESULTS  OF  BAiLMENT  RELATION. 

reversed  for  error  in  an  instruction  when  it  appears  affirm- 
atively that  the  defeated  party  was  not  injured  by  the  error. 
The  absence  of  such  injury  is  clearly  manifest  when  the  undis- 
puted evidence  establishes  the  correctness  of  the  verdict,  so  that, 
either  with  or  without  the  erroneous  instruction,  the  verdict 
could  not  have  been  otherwise  than  it  was,  and,  had  it  been 
otherwise,  would  have  been  set  aside  by  the  court:  Hall  v. 
Sroufe,  52  111.  421 ;  Burling  v.  Illinois  Cent.  R.  R.  Co.,  85  111. 
18 ;  Hubner  v.  Feige,  90  111.  208 ;  Chicago  etc.  R.  R.  Co.  v.  War- 
ner, 108  111.  538 ;  United  States  Rolling  Stock  Co.  v.  Wilder,  116 
111.  100;  5  N.  E.  R.  92;  Town  of  Wheaton  v.  Hadley,  131  111. 
640,  23  N.  E.  R.  422. 

The  defendants  in  this  case  did  a  regular  banking  business. 
The  plaintiff  kept  a  deposit  and  check  account  Avith  them.  He 
borrowed  money  from  them  from  time  to  time,  and  authorized 
them  to  hold  the  bonds  in  question  as  collaterals  to  secure  the 
notes  given  for  such  loans.  While  the  bonds  were  thus  held  as 
collaterals,  the  character  of  the  bailment  was  changed  from  a 
bailment  for  the  exclusive  benefit  of  the  bailor  to  one  for  the 
mutual  benefit  of  the  bailor  and  bailee :  Preston  v.  Prather,  137 
U.  S.  604,  11  Sup.  Ct.  R.  162.  In  ordinary  cases  of  special  de- 
posits without  reward  the  banker  has  no  right  to  handle  or 
examine  the  property  except  so  far  as  its  safety  may  require. 
But  here  the  bankers  had  access  to  the  package  containing  the 
bonds,  and  detached  the  interest  coupons  when  they  fell  due, 
and  collected  the  interest,  and  deposited  it  to  the  credit  of  the 
plaintiff,  to  be  checked  out  by  him  in  the  regular  course  of  busi- 
ness: National  Bank  v.  Graham,  100  U.  S.  699;  Whitney  v. 
First  Nat.  Bank,  55  Vt.  154 ;  45  Am.  Rep.  598. 

Ker,  the  assistant  cashier  of  the  bank,  stole  the  bonds  in  the 
summer  of  1882.  He  had  access  to  these  bonds  and  to  the  other 
special  deposits  kept  by  the  bank  in  its  vault.  About  a  year 
before  he  absconded,  Kean,  the  chief  officer  of  the  bank,  had  his 
attention  called  to  the  fact  that  Ker  was  speculating  upon  the 
board  of  trade  in  Chicago,  and  had  a  conversation  upon  the 
subject  with  him.  Ker  was  not  known  to  have  any  other  prop- 
erty than  his  salary  of  eighteen  hundred  dollars.  He  was,  how- 
ever, allowed  to  retain  his  position  in  the  bank,  and  no  effort 
was  made  to  verify  the  truth  of  the  statements  made  as  to  his 
speculations,  and  no  examination  was  made  to  ascertain  whether 
he  was  using  moneys  which  did  not  belong  to  him.    About  two 

30 


GEAY  V.  MEEEIAM.  §  6 

months  before  he  absconded,  the  subject  of  his  speculations  was 
again  called  to  the  attention  of  the  chief  officers  of  the  bank 
through  an  anonymous  communication,  and  Kean  had  a  second 
interview  with  him  in  relation  to  his  conduct  in  this  regard. ' '  The 
defendants  then  entered  upon  an  examination  of  their  books 
and  securities,  but  made  no  effort  to  ascertain  whether  the  spe- 
cial deposits  had  been  disturbed":  Preston  v.  Prather,  137  U.  S. 
604,  11  Sup.  Ct.  R.  162.  The  facts  thus  detailed  are  undisputed, 
and  are  established  by  the  evidence  of  the  defendants  themselves. 
In  Preston  v.  Prather,  137  U.  S.  604,  11  Sup.  Ct.  162,  an  action 
was  brought  in  the  circuit  court  of  the  United  States  by  parties 
in  Missouri,  doing  business  under  the  firm  name  of  the  Nodaway 
Valley  Bank  of  Maryville,  against  the  same  bankers  who  are  de- 
fendants in  the  present  suit,  to  recover  the  value  of  United  States 
bonds  held  as  a  special  deposit,  and  stolen  by  the  said  Ker  about 
the  same  time  when  he  appropriated  the  bonds  in  controversy 
here.  The  Prather  case  was  tried  by  agreement  before  the  fed- 
eral circuit  judge  without  a  jury,  resulting  in  judgment  for 
the  plaintiffs,  and  was  taken  afterwards  to  the  supreme  court 
of  the  United  States,  where  the  judgment  rendered  by  the  cir- 
cuit judge  was  affirmed.  The  evidence  in  that  case  estab- 
lished substantially  the  same  facts  as  are  herein  set  forth.  Those 
facts,  which  are  here  undisputed  and  supported  by  the  testi- 
mony of  the  defendants,  were  there  held  by  the  federal  supreme 
court  to  constitute  such  gross  negligence  as  to  make  the  defend- 
ants liable  for  the  loss  of  the  bonds.  ( Omitting  a  quotation  from 
the  opinion  of  the  court  in  the  Prather  case). 

Inasmuch  as  the  undisputed  facts  presented  to  the  jury  for 
their  consideration  on  the  trial  below  have  been  determined  by 
the  supreme  court  of  the  United  States  to  amount  to  such  gross 
negligence  as  will  fasten  liability  upon  a  gratuitous  bailee,  we 
are  disposed  to  hold  that  the  verdict  of  the  jury  was  right,  in- 
dependently of  the  error  in  the  instruction,  and  that  it  ought 
not  to  be  disturbed :  Scott  v.  National  Bank,  72  Pa.  St.  471 ; 
13  Am.  Rep.  711. 

It  is  said  that  the  trial  court  erred  in  admitting  testimony 
showing  that  the  bonds  had  been  pledged  as  collateral  security 
for  loans  made  by  the  bank  to  the  plaintiff  at  various  times 
before  they  were  stolen,  and  that  the  evidence  should  have  been 
confined  to  the  character  of  the  bailment  at  the  time  of  the 
loss  in  the  summer  or  fall  of  1882,  as  at  the  latter  date  all  prev- 

31 


§§  6,  7        LEGAL  EESULTS  OF  BAILMENT  EELATION. 

ious  loans,  for  the  security  of  which  the  bonds  had  been  pledged, 
had  been  paid  up,  and  they  were  then  held  merely  as  a  special 
deposit.  We  think  that  this  testimony,  as  well  as  that  showing 
that  Ker  had  access  to  the  bonds  for  the  purpose  of  cutting  the 
quarterly  coupons  therefrom,  as  late  as  October,  1882,  after  some 
of  them  had  been  abstracted,  was  competent  to  show  the  rela- 
tion of  the  parties  to  each  other  and  to  the  property.  As  the 
reasonable  care  which  the  defendants  were  required  to  take 
of  the  bonds  depended  upon  the  situation  and  the  bearing  of 
surrounding  circumstances,  and  the  nature  of  the  custody  which 
they  were  allowed  to  exercise  over  the  bonds,  the  extent  to  which 
they  were  permitted  to  have  access  to  the  bonds,  under  instruc- 
tions by  correspondence  from  the  plaintiff,  who  lived  iri  Iowa, 
either  for  the  purpose  of  holding  them  as  collaterals  to  notes, 
or  for  the  purpose  of  detaching  the  coupons,  had  a  direct  bear- 
ing upon  the  question  of  their  obligation  to  make  examination 
when  advised  of  the  speculations  of  their  assistant  cashier. 

The  judgment  of  the  appellate  court  is  affirmed. 

Judgment  affirmed. 

-V  7.     PRESTON  V.  PRATHER, 

137  U.  S.  601;  11  S.  Ct.  K.  162.    1890. 

Action  for  the  value  of  certain  U.  S.  bonds  of  about  $12,000 
face  value,  purchased  for  plaintiff  by  defendants  and  kept  as  a 
special  deposit  under  a  special  agreement.  The  bonds  were 
stolen  by  defendants'  assistant  cashier.  Judgment  for  plain- 
tiffs. 

]VIr.  Justice  Field,  after  stating  the  case,  delivered  the  opinion 
of  the  court. 

By  the  defendants  it  was  contended  below  in  substance,  and 
the  contention  is  renewed  here,  that  the  bonds  being  placed  with 
them  on  special  deposit  for  safe-keeping,  without  any  reward, 
promised  or  implied,  they  were  gratuitous  bailees,  and  were 
not  chargeable  for  the  loss  of  the  bonds,  unless  the  same  resulted 
from  their  gross  negligence,  and  they  deny  that  any  such  negli- 
gence is  imputable  to  them. 

On  the  other  hand,  the  plaintiffs  contended  below,  and  re- 
peat their  contention  here,  that,  assuming  that  the  defendants 
were  in  fact  simply  gratuitous  bailees  when  the  bonds  were 

32 


PRESTON  V.  PRATHER.  §  7 

deposited  with  them,  they  still  neglected  to  keep  them  with 
the  care  which  such  bailees  are  bound  to  give  for  Mie  protec- 
tion of  property  placed  in  their  custody;  and  further,  that 
subsequently  the  character  of  the  bailment  was  changed  to 
one  for  the  mutual  benefit  of  the  parties. 

Much  of  the  argument  of  counsel  before  the  court,  and  in 
the  briefs  filed  before  them,  was  unnecessary — indeed,  was  not 
open  to  consideration — from  the  fact  that  the  case  was  heard, 
upon  stipulation  of  parties,  by  the  court  without  the  interven- 
tion of  a  jury,  and  its  special  findings  cover  all  the  disputed 
questions  of  fact.  There  is  in  the  record  no  bill  of  exceptions 
taken  to  ruling  in  the  progress  of  the  trial,  and  the  correct- 
ness of  the  findings  upon  the  evidence  is  not  open  to  our  con- 
sideration. Rev.  Stat.  §  700.  The  question  whether  the  facts 
found  are  sufficient  to  support  the  judgment  is  the  only  one 
of  inquiry  here. 

Undoubtedly,  if  the  bonds  were  received  by  the  defendants 
for  safe-keeping,  without  compensation  to  them  in  any  form, 
but  exclusively  for  the  benefit  of  the  plaintiffs,  the  only  obli- 
gation resting  upon  them  was  to  exercise  over  the  bonds  such 
reasonable  care  as  men  of  common  prudence  would  usually 
bestow  for  the  protection  of  their  own  property  of  a  similar 
character.  No  one  taking  upon  himself  a  duty  for  another 
without  consideration  is  bound,  either  in  law  or  morals,  to  do 
more  than  a  man  of  that  character  would  do  generally  for 
himself  under  like  conditions.  The  exercise  of  reasonable  care 
is  in  all  such  cases  the  dictate  of  good  faith.  An  utter  dis- 
regard of  the  property  of  the  bailor  would  be  an  act  of  bad 
faith  to  him.  But  what  will  constitute  such  reasonable  care 
will  vary  with  the  nature,  value  and  situation  of  the  property, 
the  general  protection  afforded  by  the  police  of  the  community 
against  violence  and  crime,  and  the  bearing  of  surrounding 
circumstances  upon  its  security.  The  care  usually  and  generally 
deemed  necessary  in  the  community  for  the  security  of  similar 
property,  under  like  conditions,  would  be  required  of  the  bailee 
in  such  cases,  but  nothing  more.  The  general  doctrine,  as  stated 
by  text  writers  and  in  judicial  decisions,  is  that  gratuitous 
bailees  of  another's  property  are  not  responsible  for  its  loss 
unless  guilty  of  gross  negligence  in  its  keeping.  But  gross  neg- 
ligence in  such  cases  is  nothing  more  than  a  failure  to  bestow 
the  care  which  the  property  in  its  situation  demands ;  the  omis- 
3  33 


§  7  LEGAL  EESULTS  OF  BAILMENT  EELATION. 

sion  of  the  reasonable  care  required  is  the  negligence  which 
creates  the  liability;  and  whether  this  existed  is  a  question  of 
fact  for  the  jury  to  determine,  or  by  the  court  where  a  jury 
is  waived.  See  Steamboat  New  "World  v.  King,  16  How.  469, 
474,  475;  Railroad  Co.  v.  Lockwood,  17  Wall.  357,  383;  Mil- 
waukee &  St.  Paul  Railway  v.  Arms,  91  U.  S.  489,  494.  The 
doctrine  of  exemption  from  liability  in  such  cases  was  at  one 
time  carried  so  far  as  to  shield  the  bailees  from  the  fraudulent 
acts  of  their  own  employees  and  officers,  though  their  employ- 
ment embraced  a  supervision  of  the  property,  such  acts  not  be- 
ing deemed  within  the  scope  of  their  employment. 

Thus,  in  Foster  v.  Essex  Bank,  17  Mass.  479,  9  Am.  D.  168, 
the  bank  was,  in  such  a  case,  exonerated  from  liability  for  the 
property  entrusted  to  it,  which  had  been  fraudulently  appro- 
priated by  its  cashier,  the  Supreme  Judicial  Court  of  Massachu- 
setts holding  that  he  had  acted  without  the  scope  of  his  author- 
ity, and,  therefore,  the  bank  was  not  liable  for  his  acts  any  more 
than  it  would  have  been  for  the  acts  of  a  mere  stranger.  In  that 
case  a  chest  containing  a  quantity  of  gold  coin,  which  was  speci- 
fied in  an  accompanying  memorandum,  was  deposited  in  the 
bank  for  safe-keeping,  and  the  gold  was  fraudulently  taken  out 
by  the  cashier  of  the  bank  and  used.  It  was  held,  upon  the  doc- 
trine stated,  that  the  bank  was  not  liable  to  the  depositor  for 
the  value  of  the  gold  taken. 

In  the  subsequent  case  of  Smith  v.  First  National  Bank  in 
Westfield,  99  Mass.  605,  611,  97  Am.  D.  59,  the  same  court  held 
that  the  gross  carelessness  which  would  charge  a  gratuitous 
bailee  for  the  loss  of  property  must  be  such  as  would  affect  its 
safe-keeping,  or  tend  to  its  loss,  implying  that  liability  would 
attach  to  the  bailee  in  such  cases,  and  to  that  extent  qualifying 
the  previous  decision. 

In  Scott  V.  National  Bank  of  Chester  Valley,  72  Penn.  St. 
471,  480,  13  Am.  R.  711,  the  Supreme  Court  of  Pennsylvania 
asserted  the  same  doctrine  as  that  in  the  Massachusetts  case, 
holding  that  a  bank,  as  a  mere  depositary,  without  special  con- 
tract or  reward,  was  not  liable  for  the  loss  of  a  government  bond 
deposited  with  it  for  safe-keeping,  and  afterwards  stolen  by  one 
of  its  clerks  or  tellers.  In  that  case  it  was  stated  that  the  teller 
was  suffered  to  remain  in  the  employment  of  the  bank  after  it 
was  known  that  he  had  dealt  once  or  twice  in  stocks,  but  this  fact 
was  not  allowed  to  control  the  decision,  on  the  ground  that  it 

34 


PKESTOX  V.  FEATHER.  §  7 

was  unknowii  to  the  officers  of  the  bank  that  the  teller  gambled 
in  stocks  until  after  he  had  absconded,  but  at  the  same  time  ob- 
serving that: 

"No  officer  in  a  bank,  engaged  in  stock  gambling,  can  be 
safely  trusted,  and  the  evidence  of  this  is  found  in  the  numer- 
ous defaulters,  whose  peculations  have  been  discovered  to  be 
directly  traceable  to  this  species  of  gambling.  A  cashier,  treas. 
urer,  or  other  officer  having  the  custody  of  funds,  thinks  he  sees 
a  desirable  speculation,  and  takes  the  funds  of  his  institution, 
hoping  to  return  them  instantly,  but  he  fails  in  his  venture,  or 
success  tempts  him  on ;  and  he  ventures  again  to  retrieve  his  loss, 
or  increase  his  gain,  and  again  and  again  he  ventures.  Thus 
the  first  step,  often  taken  without  a  criminal  intent,  is  the  fatal 
step,  w^hich  ends  in  ruin  to  himself  and  to  those  whose  confi- 
dence he  has  betrayed." 

As  stated  above,  the  reasonable  care  which  persons  should 
take  of  property  entrusted  to  them  for  safe-keeping  without 
reward  will  necessarily  vary  with  its  nature,  value  and  situa- 
tion, and  the  bearing  of  surrounding  circumstances  upon  its 
security.  The  business  of  the  bailee  will  necessarily  have  some 
effect  upon  the  nature  of  the  care  required  of  him,  as,  for  ex- 
ample, in  the  case  of  bankers  and  banking  institutions,  having 
special  arrangements,  by  vaults  and  other  guards,  to  protect 
property  in  their  custody.  Persons  therefore  depositing  val- 
uable articles  with  them,  expect  that  such  measures  will  be 
taken  as  will  ordinarily  secure  the  property  from  burglars  out- 
side and  from  thieves  within,  and  that  whenever  ground  for 
suspicion  arises  an  examination  will  be  made  by  them  to  see 
that  it  has  not  been  abstracted  or  tampered  with;  and  also 
that  they  will  employ  fit  men,  both  in  ability  and  integrity, 
for  the  discharge  of  their  duties,  and  remove  those  employed 
whenever  found  wanting  in  either  of  these  particulars.  An 
omission  of  such  measures  would  in  most  cases  be  deemed  cul- 
pable negligence,  so  gross  as  to  amount  to  a  breach  of  good 
faith,  and  constitute  a  fraud  upon  the  depositor. 

It  was  this  view  of  the  duty  of  the  defendants  in  this  case, 
who  were  engaged  in  business  as  bankers,  and  the  evidence  of 
their  neglect,  upon  being  notified  of  the  speculations  in  stock 
of  their  assistant  cashier  who  stole  the  bonds,  to  make  the 
necessary  examination  respecting  the  securities  deposited  with 
them,  or  to  remove  the  speculating  cashier,  which  led  the  court 

35 


§  7  LEGAL  EESULTS  OF  BAILMENT  EELATION. 

to  its  conclusion  that  they  were  guilty  of  gross  negligence.  It 
was  shown  that  about  a  year  before  the  assistant  cashier  ab- 
sconded the  defendant  Kean,  who  was  the  chief  officer  of  the 
banking  institution,  was  informed  that  there  was  some  one  in 
the  bank  speculating  on  the  Board  of  Trade  at  Chicago.  There- 
upon Kean  made  a  quiet  investigation,  and  the  facts  discovered 
by  him  pointed  to  Ker,  whom  he  accused  of  speculating.  Ker  re- 
plied that  he  had  made  a  few  transactions,  but  was  doing  nothing 
then  and  did  not  propose  to  do  anything  more,  and  that  he  was 
then  about  a  thousand  dollars  ahead,  all  told.  It  was  not  known 
that  Ker  had  any  other  property  besides  his  salary.  His  posi- 
tion as  assistant  cashier  gave  him  access  to  the  funds  as  well  as 
the  securities  of  the  bank,  and  he  was  afterwards  kept  in  his 
position  without  any  effort  being  made  on  the  part  of  the  de- 
fendants to  verify  the  truth  of  his  statement,  or  whether  he  had 
attempted  to  appropriate  to  his  own  use  the  property  of  others. 
Again,  about  two  months  before  Ker  absconded,  one  of  the 
defendants,  residing  at  Detroit,  received  an  anonymous  com- 
munication, stating  that  some  one  connected  with  the  bank  in 
Chicago  was  speculating  on  the  Board  of  Trade.  He  there- 
upon wrote  to  the  bank,  calling  attention  to  the  reported  specu- 
lation of  some  of  its  employees,  and  suggesting  inquiry  and  a 
careful  examination  of  its  securities  of  all  kinds.  On  receipt  of 
this  communication  Kean  told  Ker  what  he  had  heard,  and 
asked  if  he  had  again  been  speculating  on  the  Board  of  Trade. 
Ker  replied  that  he  had  made  some  deals  for  friends  in  Canada, 
but  the  transactions  were  ended.  The  defendants  then  entered 
upon  an  examination  of  their  books  and  securities,  but  made  no 
effort  to  ascertain  whether  the  special  deposits  had  been  dis- 
turbed. Upon  this  subject  the  court  below,  in  giving  its  de- 
cision, Prather  v.  Kean,  29  Fed.  Rep.  498,  after  observing  that 
the  defendants  knew  that  Ker  had  been  engaged  in  business 
which  was  hazardous  and  that  his  means  were  scant,  and  after 
commenting  upon  the  demoralizing  effect  of  speculating  in 
stocks  and  grain,  as  seen  in  the  numerous  peculations,  embez- 
zlements, forgeries  and  thefts  plainly  traceable  to  that  cause, 
and  the  free  access  by  Ker  to  valuable  securities,  which  were 
transferable  by  delivery,  easily  abstracted  and  converted,  and 
yet  his  being  allowed  to  retain  his  position  without  any  effort 
to  see  that  he  had  not  converted  to  his  own  use  the  property  of 
others,  or  that  his  statements  were  correct,  held  that  it  was 

36 


PKESTON  V.  PEATHEE.  §  7 

gross  negligence  in  the  defendants  not  to  discharge  him  or  place 
him  in  some  position  of  less  responsibility.  In  this  conclusion 
we  fully  concur. 

The  second  position  of  the  plaintiffs  is  also  well  taken,  that, 
assuming  the  defendants  were  gratuitous  bailees  at  the  time 
the  bonds  were  placed  with  them,  the  character  of  the  bail- 
ment was  subsequently  changed  to  one  for  the  mutual  benefit 
of  the  parties.  It  appears  from  the  findings  that  the  plaintiffs, 
subsequent  to  their  deposit,  had  repeatedly  asked  for  a  dis- 
count of  their  notes  by  the  defendants,  offering  the  latter  the 
bonds  deposited  with  them  as  collateral,  and  that  such  discounts 
were  made.  Wlien  the  notes  thus  secured  were  paid,  and  the 
defendants  called  upon  the  plaintiffs  to  know  what  they  should 
do  with  the  bonds,  they  were  informed  that  they  were  to  hold 
them  for  the  plaintiffs'  use  as  previously.  The  plaintiffs  had 
already  written  to  the  defendants  that  they  desired  to  keep  the 
bonds  for  an  emergency,  and  also  that  they  wished  at  times  to 
overdraw  their  account,  and  that  they  would  consider  the  bonds 
as  securities  for  such  overdrafts.  From  these  facts  the  court  was 
of  opinion  that  the  bonds  were  held  by  the  defendants  as  collat- 
eral to  meet  any  sums  which  the  plaintiffs  might  overdraw; 
and  the  accounts  show  that  they  did  subsequently  overdraw  in 
numerous  instances. 

The  deposit,  by  its  change  from  a  gratuitous  bailment  to  a 
security  for  loans,  became  a  bailment  for  the  mutual  benefit 
of  both  parties,  that  is  to  say,  both  were  interested  in  the  trans- 
actions. For  the  bailor  it  obtained  the  loans,  and  to  that  extent 
was  to  his  advantage ;  and  to  the  bailee  it  secured  the  payment 
of  the  loans,  and  that  was  to  his  advantage  also.  The  bailee 
was  therefore  required,  for  the  protection  of  the  bonds,  to  give 
such  care  as  a  prudent  owner  would  extend  to  his  own  property 
of  a  similar  kind,  being  in  that  respect  under  an  obligation  of  a 
more  stringent  character  than  that  of  a  gratuitous  bailee,  but 
differing  from  him  in  that  he  thereby  became  liable  for  the  loss 
of  the  property  if  caused  by  his  neglect,  though  not  amounting 
to  gross  negligence. 

Two  cases  cited  by  counsel,  one  from  the  Court  of  Appeals 
of  Maryland  and  the  other  from  the  Court  of  Appeals  of  New 
York,  declare  and  illustrate  the  relation  of  parties  under  con- 
ditions similar  to  those  of  the  parties  before  us. 

37 


§§  7,  8       LEGAL  EESULTS   OF  BAILMENT  EELATION. 

(Omitting  a  discussion  of  Third  National  Bank  v.  Boyd,  44 
Maryland,  47,  and  of  Cutting  v.  Marlor,  78  N.  Y.  454.) 

It  follows,  therefore,  that  whether  we  regard  the  defendants 
as  gratuitous  bailees  in  the  first  instance,  or  as  afterwards  be- 
coming bailees  for  the  mutual  benefit  of  both  parties,  they  were 
liable  for  the  loss  of  the  bonds  deposited  with  them.  And  the 
measure  of  the  recovery  was  the  value  of  the  bonds  at  the  time 
they  were  stolen. 

Judgment  affirmed. 


8.     WILSON  V.  BRETT, 
11  Mees.  and  Welshy  113.    1843. 
Case. — Plea,  not  guilty. 

At  the  trial  before  Rolfe,  B.,  at  the  London  Sittings  in  this 
term,  it  appeared  that  the  plaintiff  had  intrusted  the  horse  in 
question  to  the  defendant,  requesting  him  to  ride  it  to  Peckham, 
for  the  purpose  of  showing  it  for  sale  to  a  Mr.  Margetson.  The 
defendant  accordingly  rode  the  horse  to  Peckham,  and  for  the 
purpose  of  showing  it,  took  it  into  the  East  Surrey  Race  Ground, 
where  Mr.  Margetson  was  engaged  with  others  in  playing  the 
game  of  cricket:  and  there,  in  consequence  of  the  slippery 
nature  of  the  ground,  the  horse  slipped  and  fell  several  times, 
and  in  falling  broke  one  of  his  knees.  It  was  proved  that  the 
defendant  was  a  person  conversant  with  and  skilled  in  horses. 
The  learned  Judge,  in  summing  up,  left  it  to  the  jury  to  say 
whether  the  nature  of  the  ground  was  such  as  to  render  it  a 
matter  of  culpable  negligence  in  the  defendant  to  ride  the  horse 
there ;  and  told  them,  that  under  the  circumstances,  the  defend- 
ant, being  shown  to  be  a  person  skilled  in  the  management  of 
horses,  was  bound  to  take  as  much  care  of  the  horse  as  if  he  had 
borrowed  it;  and  that,  if  they  thought  the  defendant  had  been 
negligent  in  going  upon  the  ground  where  the  injury  was  done, 
or  had  ridden  the  horse  carelessly  there,  they  ought  to  find  for 
the  plaintiff.  The  jury  found  for  the  plaintiff,  damages,  5£. 
10s. 

Byles,  Serjt.,  now  moved  for  a  new  trial,  on  the  ground  of 
misdirection. — There  was  no  evidence  here  that  the  horse  was 
ridden  in  an  unreasonable  or  improper  manner,  except  as  to 
the  place  where  he  was  ridden.     The  defendant  was  admitted 

38 


WILSON  V.  BEETT.  §  8 

to  be  a  mere  gratuitous  bailee :  and  there  being  no  evidence  of 
gross  or  culpable  negligence,  the  learned  Judge  misdirected 
the  jury,  in  stating  to  them  that  there  was  no  difference  be- 
tween his  responsibility  and  that  of  a  borrower.  There  are 
three  classes  of  bailments;  the  first,  where  the  bailment  is  alto- 
gether for  the  benefit  of  the  bailor,  as  where  goods  are  deliv- 
ered for  deposit  or  carriage ;  the  second,  where  it  is  altogether 
for  the  benefit  of  the  bailee,  as  in  the  case  of  a  borrower;  and 
the  third,  where  it  is  partly  for  the  benefit  of  each,  as  in  the 
case  of  a  hiring  or  pledging.  This  defendant  was  not  within  the 
rule  of  law  applicable  to  the  second  of  these  classes.  The  law 
presumes  that  a  person  who  hires  or  borrows  a  chattel  is  pos- 
sessed of  competent  skill  in  the  management  of  it,  and  holds 
him  liable  accordingly.  The  learned  Judge  should  therefore 
have  explained  to  the  jury,  that  that  which  would  amount  to 
proof  of  negligence  in  a  borrower,  would  not  be  sufficient  to 
charge  the  defendant,  and  that  he  could  be  liable  only  for  gross 
and  culpable  negligence. 

Parke,  B. — I  think  the  case  was  left  quite  correctly  to  the  jury. 
The  defendant  was  s1io^\ti  to  be  a  person  conversant  with  horses, 
and  was  therefore  bound  to  use  such  care  and  skill  as  a  person 
conversant  with  horses  might  reasonably  be  expected  to  use: 
if  he  did  not,  he  was  guilty  of  negligence.  The  whole  effect  of 
what  was  said  by  the  learned  Judge  as  to  the  distinction  between 
this  case  and  that  of  a  borrower,  was  this;  that  this  particu- 
lar defendant,  being  in  fact  a  person  of  competent  skill,  was 
in  effect  in  the  same  situation  as  that  of  a  borrower,  who  in 
point  of  law  represents  to  the  lender  that  he  is  a  person  of  com- 
petent skill.  In  the  case  of  gratuitous  bailee,  where  his  pro- 
fession or  situation  is  such  as  to  imply  the  possession  of  com- 
petent skill,  he  is  equally  liable  for  the  neglect  to  use  it. 

EOLFE,  B. — The  distinction  I  intended  to  make  was,  that  a 
gratuitous  bailee  is  only  bound  to  exercise  such  skill  as  he  pos- 
sesses, whereas  a  hirer  or  borrower  may  reasonably  be  taken  to 
represent  to  the  party  who  lets,  or  from  whom  he  borrows,  that 
he  is  a  person  of  competent  skill.  If  a  person  more  skilled 
knows  that  to  be  dangerous  which  another  not  so  skilled  as  he 
does  not,  surely  that  makes  a  difference  in  the  liability.  I  said 
I  could  see  no  difference  between  negligence  and  gross  negli- 
gence— that  it  was  the  same  thing,  with  the  addition  of  a  vitu- 

39 


§§  8,  9       LEGAL  EESULTS   OF  BAILMENT   EELATION. 

perative  epithet;  and  I  intended  to  leave  it  to  the  jury  to  say 
whether  the  defendant,  being,  as  appeared  by  the  evidence,  a 
person  accustomed  to  the  management  of  horses,  was  guilty  of 
culpable  negligence. 

Lord  Abinger,  C.  B.,  and  Alderson,  B.,  concurred. 

Rule  refused. 


9.     CLAFLIN  V.  MEYER, 

75  N.  Y.  260;  31  Am.  R.  467.     1878. 

Action  against  warehouseman  for  failure  to  deliver  goods. 
Judgment  for  plaintiff. 

Hand,  J.  The  counsel  for  the  respondents  is  correct  in  his 
position  that  the  question  of  burden  of  proof  is  the  material 
one  upon  this  appeal.  For  the  evidence  is  such  that  if  it  were 
incumbent  upon  the  defendant  to  prove  himself  free  from  all 
negligence  causing  or  attending  upon  the  burglary,  and  not 
merely  to  leave  the  case  as  consistent  with  due  care  as  with 
the  want  of  it,  it  is  clear  that  the  judgment,  so  far  as  it  adjudges 
his  liability  for  the  goods,  must  be  affirmed,  as  we  cannot  say 
that  such  proof  of  a  conclusive  character  was  given.  But  the 
law  as  to  the  burden  of  proof  is  pretty  well  settled  to  the  con- 
trary. Upon  its  appearing  that  the  goods  were  lost  by  a  bur- 
glary committed  upon  the  defendant's  warehouse,  it  was  for 
the  plaintiffs  to  establish  affirmatively  that  such  burglary  was 
occasioned  or  was  not  prevented  by  reason  of  some  negligence 
or  omission  of  due  care  on  the  part  of  the  warehouseman. 

The  cases  agree  that  where  a  bailee  of  goods,  although  liable 
to  their  owner  for  their  loss  only  in  case  of  negligence,  fails, 
nevertheless,  upon  their  being  demanded,  to  deliver  them  or 
account  for  such  non-delivery,  or,  to  use  the  language  of 
Sutherland,  J.,  in  Schmidt  v.  Blood,  where  "there  is  a  total 
default  in  delivering  or  accounting  for  the  goods,"  9  Wend. 
268,  24  Am.  D.  143,  this  is  to  be  treated  as  prima  facie  evidence 
of  negligence.  Fairfax  v.  N.  Y.  C.  and  H.  R.  R.  R.  Co.,  67  N. 
Y.  11,  29  Am.  R.  119 ;  Steers  v.  Liverpool  Steamship  Co.,  57  id. 
1 ;  15  Am.  Rep.  453 ;  Burnell  v.  N.  Y.  C.  R.  R.  Co.,  45  N.  Y.  184, 
6  Am.  Rep.  61.  This  rule  proceeds  either  from  the  assumed 
necessity  of  the  case,  it  being  presumed  that  the  bailee  has  ex- 
clusive knowledge  of  the  facts  and  that  he  is  able  to  give  the 

40 


CLAFLIN  V.  MEYEK.  §  9 

reason  for  his  non-delivery,  if  any  exist,  other  than  his  own  act 
or  fault,  or  from  a  presumption  that  he  actually  retains  the 
goods  and  by  his  refusal  converts  them. 

But  where  the  refusal  to  deliver  is  explained  by  the  fact  ap- 
pearing that  the  goods  have  been  lost,  either  destroyed  by  fire 
or  stolen  by  thieves,  and  the  bailee  is  therefore  unable  to  de- 
liver them,  there  is  no  prima  facie  evidence  of  his  want  of  care, 
and  the  court  will  not  assume  in  the  absence  of  proof  on  the 
point  that  such  fire  or  theft  was  the  cause  of  his  negligence.  Lamb 
V.  Camden  and  Amboy  E.  R.  Co.,  46  N.  Y.  271,  7  Am.  R.  327, 
and  cases  there  cited ;  Schmidt  v.  Blood,  9  Wend.  268,  24  Am.  D. 
143 ;  Piatt  v.  Hibbard,  7  Cow.  500,  note.  Grover,  J.,  in  46  N.  Y., 
supra,  says,  in  delivering  the  opinion  of  the  court,  the  question 
is  ''whether  the  defendant  was  bound  to  go  further  {i.  e.,  than 
showing  the  loss  by  fire)  and  show  that  it  and  its  employees 
were  free  from  negligence  in  the  origin  and  progress  of  the 
fire,  or  whether  it  was  incumbent  upon  the  plaintiffs  to  main- 
tain the  action  to  prove  that  the  fire  causing  the  loss  resulted 
from  such  negligence."  And  he  proceeds  to  show  that  the 
charge  of  the  judge  who  tried  the  cause  gave  to  the  jury  the 
former  instruction,  and  that  this  was  contraiy  to  the  law  and 
erroneous.  So  Sutherland,  J.,  in  9.  Wend,  supra,  in  the  case 
of  a  warehouseman,  says:  the  onus  of  showing  the  negligence 
''seems  to  be  upon  the  plaintiff  unless  there  is  a  total  default 
in  delivery'  or  accounting  for  the  goods. ' '  And  he  cites  a  note 
of  Judge  CowEN  to  his  report  of  Piatt  v.  Hibbard,  7  Cow.  500, 
in  which  that  very  learned  author  says,  criticising  and  ques- 
tioning a  charge  of  the  circuit  judge,  "the  distinction  would 
seem  to  be  that  when  there  is  a  total  default  to  deliver  the 
goods  bailed  on  demand,  the  onus  of  accounting  for  the  default 
lies  with  the  bailee;  otherwise  he  shall  be  deemed  to  have  con- 
verted the  goods  to  his  own  use  and  trover  will  lie  (Anonymous, 
2  Salk.  655),  but  when  he  has  shown  a  loss  or  where  the  goods 
are  injured,  the  law  will  not  intend  negligence.  The  onus  is 
then  shifted  upon  the  plaintiff. ' ' 

It  will  be  seen,  as  the  result  of  these  authorities,  that  the 
burden  is  ordinarily  upon  the  plaintiff  alleging  negligence  to 
prove  it  against  a  warehouseman  who  accounts  for  his  failure 
to  deliver  by  showing  a  destruction  or  loss  from  fire  or  theft. 
It  is  not  of  course  intended  to  hold  that  a  warehouseman,  refus- 
ing to  deliver  goods,  can  impose  any  necessity  of  proof  upon 

41 


§§9,  10     LEGAL  RESULTS  OF  BAILMENT  EELATION. 

the  owuer  by  merely  alleging  as  an  excuse  that  they  have  been 
stolen  or  burned.  These  facts  must  appear  or  be  proved  with 
reasonable  certainty.  Nor  do  we  concur  in  the  view  that  there 
is  in  these  cases  any  real  "shifting"  of  the  burden  of  proof. 
The  warehouseman  in  the  absence  of  bad  faith  is  only  liable 
for  negligence.  The  plaintiff  must  in  all  cases,  suing  him  for 
the  loss  of  goods,  allege  negligence  and  prove  negligence.  This 
burden  is  never  shifted  from  him.  If  he  proves  the  demand 
upon  the  warehouseman  and  his  refusal  to  deliver,  these  facts 
unexplained  are  treated  by  the  courts  as  prima  facie  evidence 
of  negligence ;  but  if,  either  in  the  course  of  his  proof  or  that  of 
the  defendant,  it  appears  that  the  goods  have  been  lost  by  theft, 
the  evidence  must  show  that  the  loss  arose  from  the  negligence 
of  the  warehouseman. 

Applying  these  principles  to  the  present  case,  we  must  hold 
that  when  it  appeared,  as  it  did,  that  the  goods  were  taken  from 
the  defendant's  warehouse  by  a  burglarious  entry  thereof,  the 
plaintiffs  should  have  shown  that  some  negligence  or  want  of 
care,  such  as  a  prudent  man  would  take  under  similar  circum- 
stances of  his  own  property,  caused  or  permitted  or  contributed 
to  cause  or  permit  that  burglary. 

[Omitting  questions  of  fact.] 

The  judgment  must  be  reversed  and  new  trial  ordered,  with 
costs  to  abide  the  event. 

All  concur,  except  Miller  and  Earl,  JJ.,  absent  at  argument. 

Judgment  reversed. 


10.     THORNE  V.  DEAS, 

4  Johns.  (N.  Y.)  84.    1809. 

This  was  an  action  on  the  case,  for  a  nonfeasance,  in  not 
causing  insurance  to  be  made  on  a  certain  vessel,  called  the  Sea 
Nymph,  on  a  voyage  from  New- York  to  Camden,  in  North-Caro- 
lina.   The  vessel  was  lost  at  sea. 

Kent,  Ch.  J.,  delivered  the  opinion  of  the  court.  The  chief 
objection  raised  to  the  right  of  recovery  in  this  case,  is  the 
want  of  a  consideration  for  the  promise.  The  offer,  on  the  part 
of  the  defendant,  to  cause  insurance  to  be  effected,  Avas  perfectly 
voluntary.     Will,  then,  an  action  lie,  when  one  party  intrusts 

42 


'IHOENE  V.  DEAS.  §  10 

the  performance  of  a  business  to  another,  who  undertakes  to 
do  it  gratuitously,  and  %A^holly  omits  to  do  it  ?  If  the  party  who 
makee  this  engagement,  enters  upon  the  execution  of  the  busi- 
ness, and  does  it  amiss,  through  the  want  of  due  care,  by  which 
damage  ensues  to  the  other  party,  an  action  will  lie  for  this 
Luisfeasance.  But  the  defendant  never  entered  upon  the  execu- 
tion of  his  undertaking,  and  the  action  is  brought  for  the  non- 
feasance. Sir  William  Jones,  in  his  "Essay  on  the  Law  of 
Bailments,"  considers  this  species  of  undertaking  to  be  as  ex- 
tensively binding  in  the  English  law,  as  the  contract  of  man- 
datum,  in  the  Roman  law ;  and  that  an  action  will  lie  for  damage 
occasioned  by  the  non-performance  of  a  promise  to  become  a 
mandatary,  though  the  promise  be  purely  gratuitous.  This  treat- 
ise stands  high  with  the  profession,  as  a  learned  and  classical 
performance,  and  I  regret,  that,  on  this  point,  I  find  so  much 
reason  to  question  its  accuracy.  I  have  carefully  examined  all 
the  authorities  to  which  he  refers.  He  has  not  produced  a  sin- 
gle adjudged  case;  but  only  some  dicta  (and  those  equivocal) 
from  the  Year  Books,  in  support  of  his  opinion ;  and  was  it  not 
for  the  weight  which  the  authority  of  so  respectable  a  name 
imposes,  I  should  have  supposed  the  question  too  well  settled 
to  admit  of  an  argument. 

A  short  review  of  the  leading  cases  will  show,  that,  by  the 
common  law,  a  mandatary,  or  one  who  undertakes  to  do  an  act 
for  another,  without  reward,  is  not  answerable  for  omitting  to 
do  the  act,  and  is  only  responsible  when  he  attempts  to  do  it, 
and  does  it  amiss.  In  other  words,  he  is  responsible  for  a  mis- 
feasance, but  not  for  a  nonfeasance,  even  though  special  dam- 
ages are  averred.  Those  who  are  conversant  with  the  doctrine 
of  mandatum  in  the  civil  law,  and  have  perceived  the  equity 
which  supports  it,  and  the  good  faith  which  it  enforces,  may, 
perhaps,  feel  a  portion  of  regret,  that  Sir  William  Jones  was 
not  successful  in  his  attempt  to  ingraft  this  doctrine,  in  all  its 
extent,  into  the  English  law.  I  have  no  doubt  of  the  perfect 
justice  of  the  Roman  rule,  on  the  ground,  that  good  faith  ought 
to  be  observed,  because  the  emploj^er,  placing  reliance  upon  that 
good  faith  in  the  mandatary,  was  thereby  prevented  from  doing 
the  act  himself,  or  employing  another  to  do  it.  This  is  the 
reason  which  is  given  in  the  Institutes  for  the  rule :  Mandatum 
non  suscipere  cuilihet  liherum  est;  susceptum  autem  consum- 
mandum  est,  aut  quam  primum  renunciandum,  ut  per  semetip- 

43 


§  10  LEGAL  RESULTS  OF  BAILMENT  EELATION. 

sum  aut  per  alium,  eandem  rem  mandator  exequatur.  (Inst.  lib. 
3.  27.  11.)  But  there  are  many  rights  of  moral  obligation  which 
civil  laws  do  not  enforce,  and  are,  therefore,  left  to  the  con- 
science of  the  individual,  as  rights  of  imperfect  obligation ;  and 
the  promise  before  us  seems  to  have  been  so  left  by  the  common 
law,  which  we  cannot  alter,  and  which  we  are  bound  to  pro- 
nounce. 

The  earliest  case  on  this  subject,  is  that  of  Watson  v.  Brinth 
(Year  Book  2  Hen.  IV.  3  &.),  in  which  it  appears  that  the  de- 
fendant promised  to  repair  certain  houses  of  the  plaintiff,  and 
had  neglected  to  do  it,  to  his  damage.  The  plaintiff  was  non- 
suited, because  he  had  shown  no  covenant ;  and  Brincheley  said, 
that  if  the  plaintiff  had  counted  that  the  thing  had  1)6671  com- 
menced, and  aftertvards,  hy  negligence,  nothing  done,  it  had 
been  otherwise.  Here  the  court,  at  once,  took  the  distinction 
between  nonfeasance  and  misfeasance.  No  consideration  was 
stated,  and  the  court  required  a  covenant  to  bind  the  party. 

In  the  next  case  (11  Hen.  IV,  33  a.)  an  action  was  brought 
against  a  carpenter,  stating  that  he  had  undertaken  to  build  a 
house  for  the  plaintiff,  within  a  certain  time,  and  had  not  done 
it.  The  plaintiff  was  also  nonsuited,  because  the  undertaking 
was  not  binding  without  a  specialty;  but,  says  the  case,  if  he 
had  undertaken  to  huild  the  house,  and  had  done  it  illy  or  neg- 
ligently, an  action  would  have  lain,  without  deed.  Brooke 
(Action  sur  le  Case,  pi.  40.)  in  citing  the  above  case,  says,  that 
"it  seems  to  be  good  law  to  this  day;  wherefore  the  action 
upon  the  case  which  shall  be  brought  upon  the  assumption, 
must  state  that  for  such  a  sum  of  money  to  him  paid,  &c.,  and 
that  in  the  above  case,  it  is  assumed,  that  there  was  no  sum 
of  money,  therefore  it  was  a  nudum  pactum." 

The  case  of  3  Hen.  VI.  36  b.  is  one  referred  to,  in  the  Essay 
on  Bailments,  as  containing  the  opinion  of  some  of  the  judges, 
that  such  an  action  as  the  present  could  be  maintained.  It 
was  an  action  against  Watkins,  a  mill-wright,  for  not  building 
a  mill  according  to  promise.  There  was  no  decision  upon  the 
question,  and  in  the  long  conversation  between  the  counsel  and 
the  court,  there  was  some  difference  of  opinion  on  the  point. 
The  counsel  for  the  defendant  contended,  that  a  consideration 
ought  to  have  been  stated ;  and  of  the  three  judges  who  expressed 
any  opinion,  one  concurred  with  the  counsel  for  the  defendant, 
and  another  (Babington,  Ch.  J.)  was  in  favor  of  the  action,  but 

44 


THORNE  V.  DBAS.  §  10 

he  said  nothing  expressly  about  the  point  of  consideration, 
and  the  third  (Cokain,  J.)  said,  it  appeared  to  him  that  the 
plaintiff  had  so  declared,  for  it  shall  not  be  intended  that  the 
defendant  would  build  the  mill  for  nothing.  So  far  is  this 
case  from  giving  countenance  to  the  present  action,  that  Brooke 
(Action  sur  le  Case,  pi.  7.  and  Contract,  pi.  6)  considered  it 
as  containing  the  opinion  of  the  court,  that  the  plaintiffs  ought 
to  have  set  forth  what  the  miller  was  to  have  for  his  labor, 
for  otherwise,  it  was  a  nude  pact;  and  in  Coggs  v.  Bernard, 
Mr.  Justice  Gould  gave  the  same  exposition  of  the  case. 

The  general  question  whether  assumpsit  would  lie  for  a  non- 
feasance, agitated  the  courts  in  a  variety  of  cases,  afterwards, 
down  to  the  time  of  Hen.  VII.  (14  Hen.  VI.  18  b.  pi.  58.  19 
Hen.  VI.  49  a.  pi.  5.  20  Hen.  VI.  34  a.  pi.  4.  2  Hen.  VII.  11. 
pi.  9.  21  Hen.  VII.  41  a.  pi.  66).  There  was  no  dispute  or  doubt, 
but  that  an  action  upon  the  case  lay  for  a  misfeasance  in  the 
breach  of  a  trust  undertaken  voluntarily.  The  point  in  contro- 
versy was,  whether  an  action  upon  the  case  lay  for  a  nonfeas- 
ance, or  non-performance  of  an  agreement,  and  whether  there 
was  any  remedy  where  the  party  had  not  secured  himself  by  a 
covenant  or  specialty.  But  none  of  these  cases,  nor,  as  far  as  I 
can  discover,  do  any  of  the  dicta  of  the  judges  in  them,  go  so 
far  as  to  say,  that  an  assumpsit  would  lie  for  the  non-perform- 
ance of  a  promise,  without  stating  a  consideration  for  the  prom- 
ise. And  when,  at  last,  an  action  upon  the  case  for  the  non-per- 
formance of  an  undertaking  came  to  be  established,  the  necessity 
of  showing  a  consideration  was  explicitly  avowed. 

Sir  William  Jones  says,  that  "a  case  in  Brooke,  made  com- 
plete from  the  Year  Book  to  which  he  refers,  seems  directly 
in  point."  The  case  referred  to  is  21  Hen.  VII.  41.  and  it  is 
given  as  a  loose  7iote  of  the  reporter.  The  chief  justice  is  there 
made  to  say,  that  if  one  agree  with  me  to  build  a  house  by  such 
a  day,  and  he  does  not  built  it,  I  have  an  action  on  the  case  for 
this  no7ifeasance,  equally  as  if  he  had  done  it  amiss.  Nothing 
is  here  said  about  a  consideration;  but  in  the  next  instance 
which  the  judge  gives  of  a  nonfeasance  for  which  an  action 
on  the  case  lies,  he  states  a  consideration  paid.  This  case,  how- 
ever is  better  reported  in  Keilway,  78.  pi.  5.,  and  this  last  report 
must  have  been  overlooked  by  the  author  of  the  "Essay." 
Frowicke,  Ch.  J.,  there  says,  "that  if  I  covenant  with  a  car- 
penter to  build  a  house,  and  pay  him  201.  to  build  the  house 

45 


§  10  LEGAL  RESULTS  OF  BAILMENT  RELATION. 

by  a  certain  day,  and  he  does  not  do  it,  I  have  a  good  action 
upon  the  case,  hy  reason  of  the  payment  of  my  money;  and 
without  payment  of  the  money  in  this  case,  no  remedy.  And 
yet,  if  he  make  the  house  in  a  bad  manner,  an  action  upon  the 
case  lies;  and  so  for  the  nonfeasance,  if  the  money  he  paid, 
action  upon  the  case  lies. ' ' 

There  is,  then,  no  just  reason  to  infer,  from  the  ancient 
authorities,  that  such  a  promise  as  the  one  before  us  is  good, 
without  showing  a  consideration.  The  whole  current  of  the  de- 
cisions runs  the  other  way,  and,  from  the  time  of  Henry  VII. 
to  this  time,  the  same  law  has  been  uniformly  maintained. 

The  doctrine  on  this  subject,  in  the  Essay  on  Baibnents,  is 
true,  in  reference  to  the  civil  law,  but  is  totally  unfounded  in 
reference  to  the  English  law;  and  to  those  who  have  atten- 
tively examined  the  head  of  Mandates,  in  that  Essay,  I  hazard 
nothing  in  asserting,  that  that  part  of  the  treatise  appears  to  be 
hastily  and  loosely  written.  It  does  not  discriminate  well  be- 
tween the  cases;  it  is  not  very  profound  in  research,  and  is 
destitute  of  true  legal  precision. 

But  the  counsel  for  the  plaintiffs  contended,  that  if  the  gen- 
eral rule  of  the  common  law  was  against  the  action,  this  was  a 
commercial  question,  arising  on  a  subject  of  insurance,  as  to 
which,  a  different  rule  had  been  adopted.  The  case  of  Wilkin- 
son V.  Coverdale  (1  Esp.  Rep.  75.),  was  upon  a  promise  to  cause 
a  house  to  be  insured,  and  Lord  Kenyon  held,  that  the  defendant 
was  answerable  only  upon  the  ground  that  he  had  proceeded  to 
execute  the  trust,  and  had  done  it  negligently.  The  distinction, 
therefore,  if  any  exists,  must  be  confined  to  cases  of  marine  in- 
surance. In  Smith  v.  Lascelles  (2  Term  Rep.  188.),  Mr.  Justice 
Buller  said  it  was  settled  law,  that  there  were  three  cases  in 
which  a  merchant,  in  England,  was  bound  to  insure  for  his 
correspondent  abroad. 

1.  Where  the  merchant  abroad  has  effects  in  the  hands  of 
his  correspondent  in  England,  and  he  orders  him  to  insure. 

2.  Where  he  has  no  effects,  but,  from  the  course  of  dealing 
between  them,  the  one  has  been  used  to  send  orders  for  insur- 
ance, and  the  other  to  obey  them. 

3.  Where  the  merchant  abroad  sends  bills  of  lading  to  his 
correspondent  in  England,  and  engrafts  on  them  an  order  to 
insure,  as  the  implied  condition  of  acceptance,  and  the  other 
accepts. 

46 


THOKNE  V.  DEAS.  §  10 

The  case  itself,  which  gave  rise  to  these  observations,  and 
the  two  cases  referred  to  in  the  note  to  the  report,  were  all 
instances  of  misfeasance,  in  proceeding  to  execute  the  trust, 
and  in  not  executing  it  well.  But  I  shall  not  question  the  appli- 
cation of  this  rule,  as  stated  by  Buller,  to  cases  of  nonfeasance, 
for  so  it  seems  to  have  been  applied  in  Webster  v.  De  Tastet. 
(7  Term  Rep.  157.)  They  have,  however,  no  application  to  the 
present  case.  The  defendant  here  was  not  a  factor  or  agent 
to  the  plaintiffs,  within  the  purview  of  the  law-merchant.  There 
is  no  color  for  such  a  suggestion.  A  factor,  or  commercial 
agent,  is  employed  by  merchants  to  transact  business  abroad,  and 
for  which  he  is  entitled  to  a  commission  or  allowance.  (Malyne, 
81.  Beawes,  44.)  In  every  instance  given,  of  the  responsibility 
of  an  agent  for  not  insuring,  the  agent  answered  to  the  defini- 
tion given  of  a  factor,  who  transacted  business  for  his  prin- 
cipal, who  was  absent,  or  resided  abroad;  and  there  were  spe- 
cial circumstances  m  each  of  these  cases,  from  which  the  agent 
was  to  be  charged ;  but  none  of  those  circumstances  exist  in  this 
case.  If  the  defendant  had  been  a  broker,  whose  business  it  was 
to  procure  insurance  for  others,  upon  a  regular  commission,  the 
case  might,  possibly,  have  been  different.  I  mean  not  to  say, 
that  a  factor  or  commercial  agent  cannot  exist,  if  he  and  his 
principal  reside  together  at  the  same  time,  in  the  same  place; 
but  there  is  nothing  here  from  which  to  infer  that  the  defend- 
ant was  a  factor,  unless  it  be  the  business  he  assumed  to  per- 
form, viz.  to  procure  the  insurance  of  a  vessel  and  that  fact  alone 
will  not  make  him  a  factor.  Every  person  who  undertakes 
to  do  any  specific  act,  relating  to  any  subject  of  a  commercial 
nature,  would  equally  become,  quoad  hoc,  a  factor ;  a  proposition 
too  extravagant  to  be  maintained.  It  is  very  clear,  from  this 
case,  that  the  defendant  undertook  to  have  the  insurance  ef- 
fected, as  a  voluntary  and  gratuitous  act,  without  the  least  idea 
of  entitling  himself  to  a  commission  for  doing  it.  He  had  an 
equal  interest  in  the  vessel  with  the  plaintiffs,  and  what  he  un- 
dertook to  do  was  as  much  for  his  own  benefit  as  theirs.  It 
might  as  well  be  said,  that  whenever  one  partner  promises  his 
copartner  to  do  any  particular  act  for  the  common  benefit,  he 
becomes,  in  that  instance,  a  factor  to  his  copartner,  and  entitled 
to  a  commission.  The  plaintiffs  have,  then,  failed  in  their  at- 
tempt to  bring  this  case  within  the  range  of  the  decisions,  or 
within  any  principle  which  gives  an  action  against  a  commercial 

47 


§  S  10,  11    LEGAL  EESULTS  OF  BAILMENT  EELATION. 

agent,  who  neglects  to  insure  for  his  correspondent.     Upon  the 
whole  view  of  the  case,  therefore,  we  are  of  opinion,  that  the 
defendant  is  entitled  to  judgment. 
Judgment  for  the  defendant. 


*^^  11.     LEACH  V.  FRENCH, 
69  Me.  389;  31  Am.  R.  296.    1879. 
Assumpsit  for  board,  keeping  and  burial  of  a  horse. 

Barrows,  J.  The  case,  as  stated  in  the  report,  is  that  the 
defendant  owned  the  horse,  for  the  board  and  keeping  of  which 
while  sick,  and  the  expense  of  its  removal  when  dead,  plaintiff 
brings  this  action,  under  the  following  circumstances: 

Defendant  let  the  horse  to  one  Devereux.  The  horse  became 
diseased  and  sick  while  thus  let,  and  Devereux  left  him  with  the 
plaintiff  for  care  and  cure.  "While  plaintiff  was  keeping  the 
horse  defendant  wrote  him  informing  him  that  he  (defendant) 
owned  the  horse  and  inquiring  about  its  condition,  and  saying 
that  an  uncle  of  Devereux  would  pay  the  bill.  After  the  horse 
died  plaintiff's  attorney  wrote  defendant  demanding  payment 
of  the  bill.  Defendant  answered,  ' '  Please  not  make  any  costs  on 
it  (the  bill)  as  I  will  call  and  settle  the  same  soon."  Plaintiff's 
attorney  thereupon  wrote  defendant  saying  he  would  wait.  After 
waiting  awhile,  in  pursuance  of  this  arrangement,  payment  not 
being  made,  this  suit  was  brought.  Defendant  denies  his  lia- 
bility to  pay  for  the  expenses  of  his  horse  thus  incurred,  and 
contends  that  there  was  no  valid  consideration  for  his  express 
promise  to  do  it.  Unless  there  was  an  original  liability  on  his 
part  by  reason  of  the  circumstances  and  acts  of  the  parties 
while  the  plaintiff  was  furnishing  the  care  and  board  of  the 
horse,  it  may  well  be  doubted  whether  a  valid  consideration  is 
shown  for  the  promise  in  defendant's  letter  to  the  attorney. 

We  do  not  find  it  necessary  to  decide  that  question,  for  as  the 
case  is  stated,  we  think,  upon  natural  and  legal  presumptions, 
it  is  made  to  appear  that  the  plaintiff  might  well  charge  the 
keeping  of  the  horse  to  its  owner,  and  that  the  defendant  would 
be  liable  for  the  bill  without  any  express  promise. 

The  first  inquiry  is,   what  were   the   respective   rights  and 

48 


LEACH  V.  FKENCH.  §  11 

duties  of  the  defendant  and  Devereux  under  the  circumstances 
disclosed  ? 

"If  a  man  hires  a  horse,"  remarks  Lumpkin,  J.,  in  Mayor  of 
Columbus  V.  Howard,  6  Ga.  213,  "he  is  bound  to  ride  it  moder- 
ately and  to  treat  it  as  carefully  as  any  man  of  common  dis- 
cretion would  his  own,  and  to  supply  it  with  suitable  food." 
Thus  doing,  if  the  animal  falls  sick  or  lame,  without  any  want 
of  ordinary  care  on  the  part  of  the  hirer,  he  is  not  responsible 
to  the  owner  for  the  consequences.  The  owner  of  the  animal 
must  bear  them. 

But  if  the  horse  falls  sick  or  becomes  exhausted  the  hirer  is 
bound  not  to  use  it.  And  if  he  does  pursue  his  journey  and  use 
it  when  reasonable  care  and  attention  would  forbid,  he  would 
make  himself  responsible  to  the  owner  for  that  act.  Bray  v. 
Mayne,  Gow.  1  (5  E.  C.  L.  437). 

On  the  other  hand,  one  who  lets  a  horse  impliedly  undertakes 
that  the  animal  shall  be  capable  of  performing  the  journey  for 
which  he  is  let,  and  if  without  the  fault  of  the  hirer  he  becomes 
disabled  by  lameness  or  sickness,  so  that  the  hirer  is  compelled 
to  incur  expense  to  procure  other  means  of  returning,  such  ex- 
pense may  be  recouped  against  the  demand  of  the  bailor  for 
the  services.    Harrington  v.  Snyder,  3  Barb.  380. 

Upon  whom,  then,  as  between  Devereux  and  the  defendant, 
should  the  expense  of  keeping  and  caring  for  the  defendant's 
horse,  which  "became  diseased  and  sick  while  in  Devereux 's 
hands,"  fall?  Up  to  the  time  when  he  fell  sick  it  was  Dever- 
eux's  business  to  furnish  him  at  his  own  proper  expense  with 
' '  meat  for  his  work. ' '  But  how  was  it  when  he  could  no  longer 
lawfully  use  him  under  his  contract  ?  Unless  the  horse  was  dis- 
abled through  some  fault  or  neglect  of  Devereux,  the  owner 
is  the  one  who  bears  the  burdens  occasioned  by  his  failure  to 
perform  the  work  for  which  he  was  hired,  and  among  them 
would  be  the  expense  of  the  care  and  cure  of  the  animal — 
an  expense  which  enures  directly  to  his  benefit.  There 
would  be  good  reason  for  holding  that  in  such  case  the  hirer  is, 
ex  necessitate,  the  agent  of  the  owner  to  procure  such  reason- 
able and  necessary  sustenance  and  farrier's  attendance  as  might 
be  required  until  the  animal  could  be  got  home;  for  while  the 
hirer  is  not  responsible  for  any  mistakes  which  a  regular  far- 
rier whom  he  calls  in  may  make  in  the  treatment  of  the  animal, 
still,  if  instead  of  applying  to  a  farrier,  he  undertakes  to  pre- 
*  49 


§  11  LEGAL  EESULTS  OF  BAILMENT   EELATJON. 

scribe  for  the  beast  himself,  and  by  his  uuskilliulness  does  it 
a  mischief,  he  assumes  a  new  degree  of  responsibility,  and  be- 
comes liable  to  the  owner  for  the  result  of  any  want  of  such 
care  as  a  man  of  ordinary  prudence  would  take  of  his  own 
horse.    Deane  v.  Keate,  3  Camp.  4. 

But  it  is  unnecessary  in  this  case  to  determine  the  extent  of 
the  hirer's  authority  as  agent  for  the  owner,  for  the  report  shows 
that  while  plaintiff  was  keeping  the  horse  defendant  wrote  to 
him  mentioning  his  ownership  and  inquiring  as  to  the  condi- 
tion of  the  animal.  Since  he  thus  knowingly  availed  himself  of 
the  plaintiff's  services  and  outlay  in  the  premises,  the  law 
will  imply  a  promise  on  his  part  to  do  what  was  right  and  pay 
the  plaintiff  for  them.  Nor  could  the  fact  that  he  gave  the  plain- 
tiff an  assurance  that  Devereux's  uncle,  who  was  certainly  under 
no  legal  obligation  so  to  do,  would  pay  the  bill,  make  any  dif- 
ference with  regard  to  plaintiff's  right  to  charge  the  keeping  of 
the  horse  to  its  owner  who  knew  he  was  keeping  it.  ' '  The  horse 
became  diseased  and  sick  while  in  Devereux's  hands."  There  is 
nothing  here  to  show  that  it  was  by  the  fault  of  Devereux.  The 
language  used  rather  indicates  the  contrary,  and  the  legal  pre- 
sumption is  against  it.  Negligence  and  misdoing  are  not  to  be 
presumed,  but  there  must  be  some  positive  evidence  of  them. 
Cooper  V.  Barton,  3  Camp.  5 ;  Tobin  v.  Murison,  9  Jur.  907. 
It  is  not  enough  to  show  that  the  horse  became  disabled,  but 
he  must  show  that  he  became  so  by  the  fault  of  the  hirer.  Har- 
rington V.  Snyder,  uti  supra. 

It  is  not  the  case  of  property,  while  in  the  possession  of  a 
bailee  for  hire,  receiving  an  injury,  which  could  not  ordinarily 
occur  without  negligence  on  the  part  of  the  custodian,  when  it 
would  be  for  him  to  show  that  the  injury  was  not  caused  by  his 
negligence.    Collins  v.  Bennett,  46  N.  Y.  490. 

"We  think  the  case  as  stated  shows  a  good  consideration 
for  an  implied  promise  on  the  part  of  defendant  to  reimburse 
the  plaintiff  for  his  outlay  in  defendant's  behalf.  Hence,  per- 
haps, defendant's  readiness  to  promise  payment  if  he  could  have 
a  little  delay. 

Defendant  defaulted. 


50 


WENTWOETH  v.  McDUFFIE.  §  12 

12.    WENTWORTH  Y.  McDUFFIE. 

48  N.  H.  402.   1869. 

Trover  for  a  horse.  The  jury  found  that  plaintiff  hired  a 
horse  and  buggy  to  defendant  to  drive  from  Rochester  to  Dover. 
Defendant  drove  the  mare  to  Hoit's,  two  miles  away  from  the 
journey  agreed  upon,  and  drove  her  immoderately  on  a  very 
hot  day,  so  that  when  she  returned  to  plaintiff's  stable  she  was 
exhausted  and  sick,  and  in  about  half  an  hour  died.  Verdict  for 
plaintiff. 

Smith,  J.  (Omitting  a  question  of  evidence.)  Taking  into 
account  the  nature  of  the  evidence  on  which  the  plaintiff  relied, 
the  gist  of  the  instructions  excepted  to  would  seem  to  be  con- 
tained in  the  last  clause,  and  we  are  not  inclined  to  think  that 
the  jury  were  misled  by  the  remarks  which  preceded  that  clause. 

The  jury  were  instructed  that  "if  the  defendant  willfully  and 
intentionally  drove  the  mare  at  such  an  immoderate  and  vio- 
lent rate  of  speed  as  seriously  to  endanger  her  life,  and  he  was 
at  the  same  time  aware  of  the  danger,  and  her  death  was  caused 
thereby,  it  would  be  such  a  tortious  act  as  would  amount  to  a 
conversion,  and  trover  might  be  maintained;  though  it  would 
be  otherwise  if  the  fast  driving  was  the  result  of  mere  negli- 
gence and  want  of  discretion,  he  not  being  aware  that  it  en- 
dangered the  safety  or  life  of  the  mare." 

Two  established  principles  of  the  law  of  trover  tend  to  sup- 
port this  instruction.  The  first  is  the  settled  rule  in  this  State, 
that  if  the  owner  of  a  horse  let  him  to  be  driven  to  one  place, 
and  the  hirer  voluntarily  drives  him  beyond  that  place  to 
another,  this  is  a  conversion  of  the  horse,  for  which  the  owner 
may  maintain  trover  against  the  hirer.  Woodman  v.  Hubbard, 
25  N.  H.  67,  57  Am.  D.  310.  This  doctrine  does  not  seem  to 
proceed  upon  the  idea  that  the  driving  the  horse  beyond  the 
place  named  in  the  contract  is  conclusive  evidence  of  the  bailee's 
intention  to  convert  the  animal  to  his  own  use,  but  rather  upon 
the  ground  that  such  use  of  the  property  is  so  substantial  an 
invasion  of  the  owner's  rights,  and  so  inconsistent  with  the  idea 
of  an  existing  bailment,  that  the  bailee  cannot  reasonably  object 
to  the  bailor's  treating  the  bailment  as  terminated  thereby  or  to 
his  proceeding  against  the  bailee  for  a  conversion.  "A  con- 
version consists  in  an  illegal  control  of  the  thing  converted,  in- 

51 


§  12  LEGAL  KESULTS  OF  BAILMENT  RELATION. 

consistent  with  the  plaintiff's  right  of  property;"  Perley,  J., 
25  N.  H.  p.  71.  It  has  been  said  that,  "if  the  thing  be  put  to  a 
different  use  from  that  for  which  it  was  bailed, ' '  the  bailor  may 
maintain  trespass  or  trover,  but  that  "any  misuser  or  abuse  of 
the  thing  bailed,  in  the  particular  use  for  which  the  bailment 
was  made,  will  not  enable  the  general  owner  to  maintain  tres- 
pass or  trover  against  the  bailee";  Redfield,  J.,  in  Swift  v. 
Mosely,  10  Vermont  208,  p.  210,  33  Am.  D.  197.  But  we  are 
unable  to  perceive  any  just  ground  for  the  distinction  as  stated 
in  these  broad  terms.  If  a  horse  is  hired  upon  the  usual  implied 
contract  that  he  is  to  be  driven  at  a  safe  rate  of  speed,  the  act 
of  the  bailee  in  willfully  and  intentionally  driving  the  horse  at 
such  an  immoderate  rate  of  speed  as  he  knew  would  seriously 
endanger  the  life  of  the  horse  is  at  least  as  marked  an  assump- 
tion of  o\^Tiership  and  as  substantial  an  invasion  of  the  bailor's 
right  of  property  as  the  act  of  driving  the  horse  at  a  moderate 
speed  one  mile  beyond  the  place  named  in  the  contract  of  hiring. 
The  probability  of  injury  to  the  horse  is  much  greater  in  the 
former  case,  and  the  cruel  treatment  of  the  horse  is  certainly 
as  inconsistent  with  the  continued  existence  of  the  contract  of 
bailment  as  the  use  of  the  horse  for  a  different  journey. 

The  other  established  principle  which  tends  to  support  this 
instruction  is  the  doctrine  that  the  willful  destruction  by  the 
bailee  of  the  thing  bailed  is  a  conversion ;  see  Morse  v.  Crawford, 
17  Vermont  499,  44  Am.  D.  349.  If  the  death  of  the  mare  was 
caused  by  an  act  willfully  and  intentionally  done  by  the  bailee 
with  knowledge  on  liis  part  that  the  life  of  the  mare  was  thereby 
seriously  endangered,  we  think  that,  so  far  as  the  civil  remedy  is 
concerned,  the  bailee  may  be  regarded  as  having  willfully  de- 
stroyed the  mare.  If  the  property  is  destroyed  by  the  bailee's 
willful  act  the  bailor's  right  to  maintain  trover  cannot  depend 
upon  the  time  when  the  destruction  is  consummated.  "It  can 
make  no  difference  whether  the  destruction  takes  place  imme- 
diately on  the  commission  of  the  act,  or  is  the  necessary  result  of 
it."  If  the  bailor  had  seen  that  his  mare  was  about  to  be  de- 
stroyed by  the  bailee's  willful  act  he  would  have  been  entitled  to 
terminate  the  bailment,  and  retake  his  property  if  he  could  do  it 
without  force.  When  the  bailor  learns  that  an  act  has  already 
been  done  which  will  result  in  the  death  of  the  mare,  can  he  not 
elect  to  consider  the  bailment  as  having  been  rescinded  by  the 
act  at  the  moment  of  its  commission? 

52 


ARMOKY  V.  DELAMIRIE.  §§  12,  13 

It  may  be  urged  that  the  principles  referred  to  as  sustaining 
the  instructions  are  themselves  arbitrary  exceptions  engrafted 
on  the  law  of  trover,  and  that  they  therefore  do  not  furnish  a 
foundation  upon  which  to  reason  from  analogy.  If  we  are  to 
look  merely  to  the  form  of  the  declaration,  very  few  of  the 
actions  of  trover  now  brought  would  be  sustained.  The  legal 
fictions  which  prevail  in  reference  to  trover  are  based  upon  au- 
thority; and  however  arbitrary  the  established  principles  may 
be,  we  know  of  no  other  test  by  which  to  decide  any  question 
pertaining  to  the  form  of  action  which  has  not  already  been 
conclusively  settled  by  authority. 

The  right  of  a  bailor  to  maintain  trespass  or  trover  against  a 
bailee  in  a  case  like  that  supposed  in  the  instructions  is  a  ques- 
tion not  conclusively  settled  by  authorities  directly  in  point. 
Rotch  V.  Hawes,  12  Pick.  136,  22  Am.  D.  414,  seems  favorable 
to  the  defendant.  McNeill  v.  Brooks,  1  Yerger  73,  is  cited  on 
the  same  side,  but  an  examination  of  the  opinion  shows  that  the 
court  did  not  have  in  mind  such  a  willful  and  intentional  misuse 
as  that  described  in  the  instructions  given  in  the  present  case. 
Swift  V.  Moseley,  10  Vermont  208,  33  Am.  D.  197,  contains  a 
dictum  favorable  to  the  defendant,  but  the  case  itself  is. not  in 
point ;  see  also  Harris,  J.,  in  Parker  v.  Thompson,  5  Sneed  349, 
p.  352.  On  the  other  hand  Maguyer  v.  Hawthorn,  2  Harrington 
71,  tends  to  sustain  the  plaintiff;  as  do  also  Campbell  v.  Stakes, 
2  Wend.  137,  19  Am.  D.  561 ;  and  Nelson  v.  Bondurant,  26  Ala. 
341,  reaffirmed  in  Hall  v.  Goodson,  32  Ala.  277 ;  see  also  James 
V.  Carper,  4  Sneed  397. 

We  think  the  instructions  were  correct. 

Judgment  on  the  verdict. 


13.     ARMORY  V.  DELAMIRIE, 

1  Strange  505.    1721. 

In  Middlesex,  coram  Pratt,  C.  J. 

The  plaintiff  being  a  chimney  sweeper's  boy  found  a  jewel 
and  carried  it  to  the  defendant's  shop  (who  was  a  goldsmith) 
to  know  what  it  was,  and  delivered  it  into  the  hands  of  the 
apprentice,  who  under  pretence  of  weighing  it,  took  out  the 
stones,  and  calling  to  the  master  to  let  him  know  it  came  to 

53 


§§  13,  14   LEGAL  EESULTS   OF  BAIL:MENT   RELATION. 

three  halfpence,  the  master  offered  the  boy  the  money,  who 
refused  to  take  it,  and  insisted  to  have  the  thing  again:  where- 
upon the  apprentice  delivered  him  back  the  socket  without  the 
stones.  And  now  in  trover  against  the  master  these  points 
were  ruled: 

1.  That  the  finder  of  a  jewel,  though  he  does  not  by  such 
finding  acquire  an  absolute  property  or  ownership,  yet  he  has 
such  a  property  as  will  enable  him  to  keep  it  against  all  but 
the  rightful  owner,  and  consequently  may  maintain  trover. 

2.  That  the  action  well  lay  against  the  master,  who  gives  a 
credit  to  his  apprentice,  and  is  answerable  for  his  neglect. 

3.  As  to  the  value  of  the  jewel  several  of  the  trade  were 
examined  to  prove  what  a  jewel  of  the  finest  water  that  would 
fit  the  socket  would  be  worth :  and  the  Chief  Justice  directed 
the  jury,  that  unless  the  defendant  did  produce  the  jewel,  and 
shew  it  not  to  be  of  the  finest  water,  they  should  presume  the 
strongest  against  him,  and  make  the  value  of  the  best  jewels 
the  measure  of  tbeir  damages ;  which  they  accordingly  did. 


>.14.    LITTLE  V   FOSSETT, 

34  Me.  545;  56  Am.  D.  671.     1852. 

Trespass  for  damages  to  a  hired  wagon  and  harness,  injured 
by  negligence  of  defendant  in  driving  against  the  wagon  on  the 
highway.  The  court  below  refused  an  instruction  that  one  hav- 
ing a  mere  temporary  possession  could  not  sue  for  a  permanent 
injury.    Exceptions  to  such  refusal.    Verdict  for  plaintiff. 

By  CouET,  Appletox.  J.  The  law  seems  to  be  well  settled  that 
the  bailee  of  personal  property  may  recover  compensation  for 
any  conversion  of  or  any  injury  to  the  article  bailed  while  in  his 
possession.  The  longer  or  shorter  period  of  such  bailment,  the 
greater  or  lesser  amount  of  compensation — and  whether 
such  amount  is  a  matter  of  special  contract  or  is  a 
legal  implication  from  the  beneficial  enjoyment  of  the  loan  does 
not  seem  to  affect  the  question.  "The  borrower  has  no  special 
property  in  the  thing  loaned,  though  his  possession  is  sufficient 
for  him  to  protect  it  by  an  action  of  trespass  against  a  wrong- 
doer:" 2  Kent's  Com.  574.  By  the  common  law,  in  virtue  of 
the  bailment,  the  hirer  acquires  a  special  property  in  the  thing 

54 


GEEEN  V.  HOLLINGSWOETH.  §§  14,  15 

during  the  continuance  of  the  contract  and  for  the  purposes 
expressed  or  implied  by  it.  Hence  he  may  maintain  an  action 
for  any  tortious  dispossession  of  it  or  any  injury  to  it  during 
the  existence  of  his  right :  Story  on  Bail.,  sec.  394.  In  Croft  v. 
Alison,  4  Barn.  &  Aid.  590,  the  court  held  that  the  plaintiffs, 
who  had  hired  the  chariot  injured,  for  the  day,  and  had  ap- 
pointed the  coachman  and  furnished  the  horses,  might  be 
deemed  the  owners  and  proprietors  of  the  chariot,  and  as  such 
might  recover  of  the  defendant  for  the  injury  it  had  sustained 
from  his  negligent  driving.  In  Nicolls  v.  Bastard,  2  Cromp.  M. 
&  R.  659,  it  was  decided  that,  in  case  of  a  simple  bailment  of  a 
chattel  without  reward,  its  value  might  be  recovered  in  trover 
either  by  the  bailor  or  bailee,  if  taken  out  of  the  bailee's  pos- 
session. 

The  bailee  is  entitled  to  damages  commensurate  with  the  value 
of  the  property  taken  or  the  injury  it  may  have  sustained,  ex- 
cept in  a  suit  against  the  general  owner,  in  which  case  his  dam- 
ages are  limited  to  his  special  interest,  "If,"  say  the  court, 
in  White  v.  Webb,  15  Conn.  302,  "the  suit  is  brought  by  a  bailee 
or  special  propertjTnan  against  the  general  owner,  then  the 
plaintiff  can  recover  the  value  of  his  special  property ;  but  if  the 
writ  is  against  a  stranger,  then  he  recovers  the  value  of  the 
property  and  interest  according  to  the  general  rule,  and  holds 
the  balance  beyond  his  own  interest,  in  trust  for  the  general 
owner."  This  view  of  the  law  seems  fully  confirmed  by  the 
uniform  current  of  authority :  Lyle  v.  Barker,  5  Binn.  457 ; 
Ingersoll  v.  Van  Bokkelin,  7  Cow.  670;  Chesley  v.  St.  Clair,  1 
N.  H.  189;  2  Kent's  Com.  585. 

The  instructions  given  were  correct.  The  exceptions  are  over- 
ruled, and  judgment  is  to  be  rendered  on  the  verdict. 


ivl5.    GREEN  V.  HOLLINGSWORTH, 

5  Dana  (Ey.)  173;  30  Am.  D.  680.    1837. 

Detinue  for  the  wrongful  detention  of  a  watch.  Judgment 
for  defendant,  and  plaintiff  excepts. 

By  Court,  Robertson,  C.  J.  Hollingsworth  ha%dng  obtained 
a  verdict  and  judgment  against  Green,  in  an  action  of  detinue, 
for  a  gold  watch,  several  errors  are  assigned  by  Green,  as  arising 

55 


§  15  LEGAL  EESULTS  OF  BAILMENT  EELATION. 

from  instructions  and  refusals  to  instruct  the  jury  on  the  trial. 

It  appears  from  the  bill  of  exceptions,  that  the  parties  being 
intimate  acquaintances  and  cordial  friends,  and  both  being  in 
a  jocund  mood  on  a  public  occasion,  while  Hollingsworth  was 
a  candidate  for  the  legislature,  Green  said  to  him,  in  the  hear- 
ing and  presence  of  several  persons,  "Give  me  your  watch  and 
I  will  vote  for  you,  and  do  all  I  can  to  assist  you  in  your  elec- 
tion"; whereupon  Hollingsworth  handed  the  watch  to  him, 
without  the  chain,  and  Green  having  fastened  a  twine  string 
and  a  key  to  it,  put  it  in  his  pocket,  and  they  shortly  afterwards 
separated,  Green  still  retaining  the  watch ;  about  three  weeks  af- 
ter which,  Green,  being  on  a  hunting  excursion,  with  the  watch 
in  his  pocket,  said,  on  his  return  home,  that  he  had  lost  it  in 
the  woods;  and  having  afterwards  engaged  others  to  assist  in 
searching  for  it,  and  not  finding  it,  he  offered  a  reward  of 
ten  dollars  for  its  discovery  and  restoration ;  but  the  witnesses 
never  heard  that  it  had  ever  been  seen  since;  that  some  time 
after  the  alleged  loss  of  it,  Hollingsworth  requested  Green  to 
return  it,  which  he,  of  course,  failing  to  do,  this  suit  was  brought 
for  a  wrongful  detention  of  it.  The  jury  had  to  decide  whether 
the  foregoing  facts  conduced  most  strongly  to  establish  a  gift, 
a  loan,  a  deposit,  or  a  sale  on  an  illegal  consideration;  and  if 
there  was  no  sale  nor  gift,  it  was  the  province  of  the  jury  to  de- 
cide whether  the  bailment  was  a  loan  or  a  mere  deposit,  and 
whether  the  watch  had,  as  alleged,  been  lost;  but  it  was  the 
province  of  the  court  to  decide  respecting  the  degree  of  care  re- 
quired by  law,  according  to  the  facts. 

Hollingsworth  could  not  recover,  unless  the  jury  had  con- 
cluded that  the  watch  had  been  bailed  to  Green;  for  it  is  evi- 
dent that  if  it  was  sold  upon  an  illegal  consideration,  although 
the  contract  was  void,  the  law  would  not  help  either  party, 
standing,  as  they  would,  in  equal  fault.  It  is  to  just  such  a  case 
that  the  maxim  in  pari  delicto  potior  conditio  defendentis,  is  con- 
clusively applicable.  And  whether,  upon  the  hypothesis  that 
there  was  a  bailment,  there  should  have  been  a  recovery,  de- 
pends on  the  following  considerations ; 

1.  If  the  bailment  was  a  simple  deposit,  with  implied  leave 
to  carry  the  watch  in  the  pocket,  and  if  it  was  lost  by  the 
bailee,  he  is  not  liable  unless  he  was  guilty  of  gross  negligence, 
or  unless,  prior  to  the  loss,  he  had  violated  his  implied  obliga- 
tion to  return  it  in  a  reasonable  time,  and  thereby  rendered 

56 


GEEEN  V.  HOLLINGSWORTH.  §  15 

himself  responsible  for  all  consequences;  and  whether,  without 
demand,  it  was  his  duty  to  have  returned  it  within  three  weeks 
after  the  date  of  the  deposit,  was  a  question  of  law  for  the 
court,  and  not  the  jury,  to  decide.  But  the  evidence  will  hardly 
allow  the  deduction  that  there  was  a  mere  deposit;  and  if  it 
would,  it  would  perhaps  also  show  that  it  was  a  deposit  at  the 
instance  of  Green,  rather  than  of  Hollingsworth,  and  therefore 
required  the  observance  of  ordinary  care,  at  least. 

2.  If  there  was  a  simple  loan,  more  than  ordinary  care  was 
required  by  law.  And  if  the  watch  was  in  fact  lost,  as  alleged, 
it  was  the  province  of  the  court  to  decide  as  to  what  was  gross, 
ordinary,  and  slight  neglect,  and  that  of  the  jury  to  determine 
whether  the  facts  established  the  one,  or  the  other,  or  any  de- 
gree of  negligence.  If  the  watch  was  loaned  to  Green,  when 
it  was  to  be  returned  was  a  fact  to  be  ascertained  by  the  jury 
from  the  circumstances  proved;  and  if  those  circumstances 
conduced  to  establish  no  special  time,  and,  from  the  nature  of 
the  transaction  as  proved,  the  jury  could  have  inferred  that 
the  parties  actually  intended  a  beneficial  loan,  the  law  made  it 
the  duty  of  Green  to  return  the  watch  in  a  reasonable  time.  But, 
in  such  a  state  of  ease,  of  indefinite  loan  for  use,  a  court  could 
not  decide  that  Green  was  guilty  of  a  breach  of  his  implied 
obligation,  in  not  returning  the  watch  within  three  weeks,  or 
the  time  that  elapsed  before  the  alleged  loss  of  it.  Nor  could 
it  be  decided,  as  a  matter  of  law,  upon  the  facts  proved,  that 
there  was  gross  or  even  slight  neglect  in  carrying  the  watch 
in  his  pocket  when  he  was  hunting.  The  use  of  it  may  have  been, 
and  probably  was,  especially  important  on  such  an  occasion; 
and  therefore,  if  there  was  culpable  negligence  in  thus  using 
it,  the  consequence  might  be  that  he  could  not  have  used  it  at 
all,  without  being  responsible  for  an  accidental  loss  of  it  in 
consequence  of  using  it.  But  there  may,  prima  facie,  have  been 
at  least  slight  neglect  in  losing  the  watch  out  of  his  pocket. 

If  the  watch  was  loaned  without  any  express  agreement,  and 
if  Green  failed,  upon  a  demand  of  restitution,  to  return  it, 
while  he  had  it,  or  converted  it,  in  judgment  of  law,  by  seri- 
ously claiming  it  as  his  own,  he  would  be  liable  for  it,  whatever 
may  have  happened  to  it,  without  the  agency  or  assent  of  Hol- 
lingsworth. But  there  is  no  proof  of  any  such  demand  or  con- 
version prior  to  the  loss  of  the  watch.  And  if  the  parties  did 
not  intend  a  bailment,  there  was  no  ground  for  serious  contro- 

57 


§§  15,  16   LEGAL  EESULTS  OF  BAILMIENT  KELATION. 

versy.     There  is  scarcely  a  pretext  for  presuming  a  sale — it  is 
much  more  probable  that  there  was  a  gift. 

As  the  instructions  given  by  the  circuit  judge  were,  in  some 
respects,  essentially  variant  from  the  foregoing  principles,  and 
may  have  been,  to  some  extent,  prejudicial  to  the  plaintiff  in 
error,  the  judgment  must  be  reversed,  and  the  cause  remanded 
for  a  new  trial,  without  any  intimation  as  to  whether  the  ver- 
dict could  have  been  sustained  had  there  been  no  error  in  the 
instructions. 


16.     ALLEN  V.  DELANO, 

55  Me,  113;  92  Am.  Z).  573,    1867. 

Replevin  for  a  colt.  The  plaintiff  sold  the  defendant  a  mare, 
taking  his  note  therefor,  with  a  written  agreement  added  that 
said  mare  should  continue  the  property  of  the  vendor  till  paid 
for.  The  mare  was  with  foal  at  the  date  of  the  writing,  and 
that  offspring  was  the  colt  replevied.  The  note  was  unpaid  at 
the  commencement  of  the  suit.  The  plaintiff  was  nonsuited,  and 
alleged  exceptions. 

By  Court,  Appleton,  C.  J.  The  nonsuit  must  be  set  aside, 
and  the  case  stand  for  trial. 

The  plaintiff' 's  title  to  the  mare  is  not  questioned.  By  the 
terms  of  the  contract,  no  title  vested  in  the  conditional  vendee. 

The  plaintiff,  owning  the  mare,  owned  likewise  the  colt.  ' '  Of 
all  tame  and  domestic  animals,  the  brood  belongs  to  the  owner 
of  the  dam  or  mother;  the  English  law  agreeing  with  the  civil 
that  partus  sequitur  ventrem  in  the  brute  creation,  though  for 
the  most  part  in  the  human  species  it  disallows  that  maxim": 
2  Bl.  Com.  390.  And  so  are  all  the  authorities.  Putting  a 
mare  to  pasture  in  consideration  of  her  services  does  not  entitle 
the  bailee  to  her  increase:  Allen  v.  Allen,  2  Penr.  &  W.  166. 
In  case  of  a  pledge,  not  only  the  thing  pledged  passes,  but  also, 
as  accessory,  its  natural  increase,  as,  for  instance,  the  young  of 
a  flock  of  sheep :  Story  on  Bailments,  sec.  292.  Where  live  stock 
is  mortgaged,  its  natural  increase  and  produce  becomes  subject 
to  the  mortgage:  Forman  v.  Proctor,  9  B.  Mon.  124.  The  in- 
crease of  domestic  animals  gratuitously  loaned  belongs  to  the 
lender:  Orser  v.  Storms,  9  Cow.  687  [18  Am.  Dec.  543].  Where 
a  mare  was  sold  on  condition,  the  vendor  continued  to  be  the 

58 


ESMAY  V.  FANNING.  §§  16,  17 

owner  of  her  colts  until  performance  of  the  condition:  Buck- 
master  V.  Smith,  22  Vt.  203.     The  defendant,  having  no  title  to 
the  mare,  can  have  none  to  her  increase. 
Exceptions  sustained. 


^17.    ESI^IAY  V.  FANNING, 
9  Barb,  (N.  Y.)  176.     1850. 

Trover  for  a  carriage.  The  cause  was  referred  to  a  referee, 
who  reported  that  he  foiuid  as  facts  that  about  the  1st  of  June, 
1846,  the  plaintiff  loaned  to  the  defendant  the  carriage  in  ques- 
tion, to  be  safely  kept  by  the  defendant  for  the  plaintiff,  and  to 
be  re-delivered  to  the  plaintiff  on  request;  that  the  defendant 
had  been  requested  to  redeliver  the  same  to  the  plaintiff;  that 
the  defendant  and  plaintiff  might  each  use  the  carriage  and  the 
defendant's  horses  when  he  chose;  that  the  carriage  was  ob- 
tained by  the  defendant  from  the  livery  stable  of  George  L. 
Crocker,  then  of  Albany  city,  and  that  he  kept  it  safely  till  about 
the  1st  November,  1846,  during  which  time  it  was  used  oc- 
casionally by  both  parties,  plaintiff  and  defendant.  That  about 
the  first  of  November,  1846,  it  was  returned  by  the  defendant  to 
the  stable  of  said  Crocker;  which  return  of  the  carriage  to  the 
stable  of  Crocker,  the  referee  decided  was  not  a  re-delivery  of 
the  carriage  to  the  plaintiff  or  his  agent.  He,  therefore,  reported 
in  favor  of  the  plaintiff'  for  the  value  of  the  carriage  at  that 
time,  on  which  judgment  was  thereupon  given,  as  for  a  con- 
version of  the  carriage. 

The  defendant  appealed  from  the  decision  of  the  referee. 

By  the  Court,  Willard,  J.  The  gist  of  this  action  is  the 
conversion  and  deprivation  of  the  plaintiff's  property,  and  not 
the  acquisition  of  property  by  the  defendant.  (3  Barn.  &  Aid. 
685.)  The  general  requisites  to  maintain  the  action  are,  prop- 
erty in  the  plaintiff ;  actual  possession  or  a  right  to  the  immedi- 
ate  possession  thereof;  and  a  wrongful  conversion  by  the  de- 
fendant. (4  Barb.  56.)  The  plaintiff's  title  was  not  dis- 
puted in  this  case.  The  issue  is  on  the  conversion;  or,  in 
other  words,  it  is  whether  the  defendant  re-delivered  the  car- 
riage to  the  plaintiff  or  his  agent,  before  the  commencement  of 
this  suit.  The  plaintiff  alleges  a  refusal  to  re-deliver  it,  and 
the  defendant  avers  that  he  did  re-deliver  it.    The  referee  found 

59 


§  17  LEGAL   RESULTS   OF  BAILMENT   EELATION. 

the  fact  that  the  defendant  did  not  re-deliver  the  carriage  to  the 
plaintiff  or  his  agent;  and  the  proof  is  that  Crocker,  to  whom 
the  defendant  did  deliver  the  carriage,  in  November,  1846,  was 
not,  at  that  time,  the  agent  of  the  plaintiff,  or  authorized  to 
receive  it.  And  there  is  no  evidence  that  the  plaintiff  ever 
assented  to  that  delivery.  The  question,  therefore,  becomes  nar- 
rowed dowTi  to  this :  whether  a  bailee  of  a  chattel  is  answerable 
in  trover,  on  showing  a  delivery  to  a  person  not  authorized  to 
receive  it.  In  Devereux  v.  Barclay  (2  Barn.  &  Aid.  702),  it 
was  held  that  trover  will  lie  for  the  mis-delivery  of  goods  by 
a  warehouseman,  although  such  mis-delivery  was  occasioned  by 
mistake  only — and  this  court,  in  Packard  v.  Getman  (4  Wend. 
613,  21  Am.  D.  166),  held  that  the  same  action  would  lie  against 
a  common  carrier,  who  had  delivered  the  goods,  by  mistake,  to 
the  wrong  person.  The  same  point  was  ruled  by  Lord  Kenyon 
in  Youl  V.  Ilarbottle  (Peake's  N.  P.  Cases,  49),  and  by  the 
English  Common  Pleas  in  Stephenson  v.  Hart  (4  Bing.  476). 
If  trover  will  lie  against  a  common  carrier  or  a  warehouseman 
for  a  mis-delivery,  it  can,  under  the  like  circumstances,  be  sus- 
tained against  a  bailee  for  hire,  or  a  gratuitous  bailee.  It  results 
from  the  very  obligation  of  his  contract,  that  if  he  fails  to  restore 
the  article  to  the  rightful  owner,  but  delivers  it  to  another  per- 
son, not  entitled  to  receive  it,  he  is  guilty  of  a  conversion.  (Story 
on  Bail.  §  414.) 

The  referee  found  as  a  fact  that  the  carriage  was  not  re-deliv- 
ered to  the  plaintiff,  but  was  delivered  to  another  person  having 
no  right  to  receive  it.  The  evidence  detailed  in  the  case  war- 
ranted that  finding,  and  it  can  not  be  disturbed  by  this  court. 
We  think  the  referee  drew  the  right  conclusion  from  that  fact, 
and  justly  held  the  defendant  liable  for  the  value  of  the  car- 
riage. 

As  the  parties  all  lived  in  the  same  city,  the  carriage  should 
have  been  returned  to  the  plaintiff,  unless  there  was  some  agree- 
ment to  the  contrary.  The  fact  that  the  carriage  was  stored 
by  the  plaintiff  in  Crocker's  stable,  at  the  time  the  defendant 
first  received  it,  did  not  authorize  him,  under  a  contract  to 
return  it  to  the  plaintiff,  to  deliver  it  to  Crocker,  who  had  ceased 
to  be  the  plaintiff's  agent.  The  place  of  delivery  of  the  car- 
riage was  the  plaintiff's  residence.  (Barns  v.  Graham,  4  Cow- 
en,  452,  15  Am.  D.  394.  Story  on  Bail.  §§  257,  261,  265.)  A 
delivery  elsewhere,  without  authority,  was  a  conversion.     We 

60 


ESMAY  V.  FANNING.  §  17 

have  not  adopted  the  civil  law,  which  allowed  the  bailee,  in  case 
no  place  was  agreed  on,  to  restore  the  property  to  the  place  from 
which  he  took  it,     (Story  on  Bail.  §  117.) 

It  was  not  necessary  in  this  case  to  prove  a  demand  and  re- 
fusal. Had  the  carriage  remained  in  the  defendant's  posses- 
sion, no  action  could  have  been  maintained  by  the  plaintiff 
against  the  defendant,  until  it  had  been  demanded,  and  the 
defendant  had  neglected  or  refused  to  return  it.  A  demand  and 
refusal  are  not  a  conversion,  but  evidence  from  which  it  can  be 
inferred.  A  demand  is  necessary  whenever  the  goods  have  come 
lawfully  into  the  defendant's  possession;  unless  the  plaintiff 
can  prove  some  wrongful  act  of  the  defendant  in  respect  of  the 
goods  which  amounts  to  an  actual  conversion.  (2  Leigh's  N.  P. 
1483.  Bates  v.  Conklin,  10  Wend.  389.  Tompkins  v.  Haile,  3  Id. 
406.)  As  the  delivery  of  the  carriage  by  the  defendant  to 
Crocker  instead  of  the  plaintiff  amounted  to  a  conversion,  proof 
of  a  demand  and  refusal  was  unnecessary.  The  testimony  of 
Nichols,  therefore,  to  prove  a  demand  was  immaterial,  and  the 
decision  of  the  referee,  refusing  to  permit  the  defendant  to  prove 
what  he  said  at  the  time  the  demand  was  made,  could  have  no 
influence  on  the  result  of  the  cause.  Had  a  demand  been  ne- 
cessary, tlie  declaration  of  the  defendant  in  answer  to  the  de- 
mand would  have  been  admissible,  as  well  on  the  part  of  the 
defendant  as  of  the  j)laintiff.  The  decision  of  the  referee  that 
a  demand  and  refusal  were  admitted  by  the  pleadings,  whether 
right  or  wrong,  worked  no  injury  to  the  defendant. 

A  wide  range  was  taken  on  the  argument,  on  the  implied 
obligations  resulting  from  the  various  kinds  of  bailments,  and 
particularly  with  reference  to  the  restoring  the  thing  bailed  to 
the  bailor.  But  it  seems  unnecessary  to  discuss  this  subject,  in 
this  case,  because  here  there  was  an  express  agreement  to  return 
the  property  to  the  plaintiff,  on  request. 

The  judgment  must  be  affirmed. 


61 


PART  n. 

OF    ORDINARY  BAILMENTS. 

i.     OF  GRATUITOUS  BAILMENTS. 


CHAPTER  III. 

A.      OF   GRATUITOUS  SERVICES. 

18.    NEWHALL  V.  PAIGE, 
10  Gray  (Mass.)  366.    1858. 

Action  of  contract,  with  a  count  in  tort,  to  recover  the 
value  of  merchandise  sent  from  Portland,  Maine,  by  steamboat 
to  Boston,  marked  "H.  B.  Newhall,  Saugus,  care  R.  M.  Morse, 
South  Market  St.,  Boston,"  and  lost  under  the  following  cir- 
cumstances: "Upon  its  arrival  in  Boston  it  was  delivered  to 
the  teamster  of  the  steamboat  company,  who  took  it  to  the  de- 
fendant's store,  where  was  the  order  box  of  an  expressman  who 
ran  an  express  to  Saugus.  As  this  expressman  did  not  run  to 
that  part  of  Saugus  where  the  plaintiff  lived,  he  told  another 
expressman,  George  Tow^ne,  who  kept  a  box  in  another  part  of 
the  city,  and  went  by  the  plaintiff's  house,  to  call  and  take 
the  merchandise.  Towue  called,  paid  the  freight  bill,  and  the 
defendants  could  not  then  find  the  merchandise.  The  only 
compensation  received  by  the  defendants  for  receiving  and  stor- 
ing merchandise  left  for  expressmen,  and  for  allowing  express- 
men to  have  boxes  in  their  store,  was  the  advantage  in  bringing 
them  business.    The  defendants  kept  a  liquor  store." 

Plaintiff  asked  a  ruling  that  this  advantage  was  a  compensa- 
tion sufficient  to  make  defendants  bailees  for  hire,  and  excepted 
to  the  instruction  given  to  the  jury  on  this  point.  Verdict  for 
defendants. 

BiGELOW,  J.  The  only  error  in  this  case  was  in  the  instruc- 
tions given  to  the  jury,  and  consisted  in  telling  them  that  the 

62 


FOSTEE  V.  ESSEX  BANK.  §§  18,  19 

defendant  could  not  be  considered  a  bailee  for  hire  unless  his 
compensation  was  for  some  certain  benefit  to  himself,  and  that 
a  mere  •  contingent,  uncertain  and  indirect  benefit  would  not 
constitute  such  a  consideration  as  was  necessary  to  establish  a 
contract  of  bailment  for  hire  or  reward.  This  was  stating  the 
proposition  more  broadly  than  the  rules  of  law  will  warrant. 
A  person  becomes  a  bailee  for  hire  when  he  takes  property  into 
his  care  and  custody  for  a  compensation.  The  nature  and 
amount  of  the  compensation  are  immaterial.  The  law  will  not 
inquire  into  its  sufficiency  or  the  certainty  of  its  being  realized 
by  the  bailee.  The  real  question  is,  Was  the  contract  made  for 
a  consideration?  If  so,  then  it  was  a  locatum  and  not  a  de- 
positum,  and  the  defendants  were  liable  for  a  want  of  ordinary 
care.  The  general  rule  as  to  the  consideration  of  a  contract  is 
well  understood,  and  is  the  same  in  case  of  bailments  as  in  all 
other  contracts.  The  law  does  not  undertake  to  determine  the 
adequacy  of  a  consideration.  That  is  left  to  the  parties,  who 
are  the  sole  judges  of  the  benefits  or  advantages  to  be  derived 
from  their  contracts.  It  is  sufficient  if  the  consideration  be  of 
some  value,  though  slight,  or  of  a  nature  which  may  enure  to 
the  benefit  of  the  party  making  the  promise.  Haigh  v.  Brooks, 
10  Ad.  &  El.  320,  and  2  P.  &  Dav.  484.  Lawrence  v.  McCal- 
mont,  2  How.  452.  Hubbard  v.  Coolidge,  1  Met.  92.  Where 
such  a  consideration  exists,  a  contract  cannot  be  said  to  be  a 
nudum  pactum,  nor  a  bailment  a  gratuitous  undertaking. 
Exceptions  sustained.  Pr 


19.     FOSTER  V.  ESSEX  BANK, 

17  Mass.  479;  9  Am.  D.  168.    1821. 

Assumpsit  by  executors  of  Israel  Foster  to  recover  $50,000 
deposited  by  Foster  with  the  bank  for  safe  keeping,  and  stolen 
by  their  cashier  and  chief  clerk.  The  cask  containing  the  gold 
was  weighed  in  the  presence  of  the  president  and  cashier,  but 
the  directors  had  no  knowledge  of  this  deposit,  though  it  had 
been  the  custom  of  the  bank  to  receive  special  deposits.  No 
special  account  was  kept  by  the  bank  of  such  deposits.  With 
this  gold  was  stolen  most  of  the  capital  of  the  bank,  and  it  ap- 
peared the  books  had  been  falsified  for  more  than  two  years,  dur- 
ing which  they  had  not  been  regularly  posted. 

63 


§  19  OF  GEATUITOUS  SERVICES. 

By  Court,  Parker,  C.  J.  This  is  assumpsit  to  recover  of  the 
defendants  the  value  of  certain  gold  deposited  by  the  plaintiffs' 
testator  in  the  bank,  of  which  the  defendants  are  the  proprie- 
tors; and  the  facts  upon  which  the  action  is  founded,  are  es- 
tablished by  a  special  verdict  found  by  the  jury  who  tried  the 
issue.  Those  facts  are  multifarious,  and  present  several  very 
important  questions  of  law,  which  have  been  investigated  by 
the  counsel  with  all  the  research  and  ability  which  novelty,  in 
their  application  to  a  subject  of  so  general  concern  as  banks 
seemed  to  demand.  No  case  has,  however,  been  produced  on 
either  side  so  apposite  as  to  relieve  the  court  from  an  inquiry 
into  the  general  principles  on  which  the  action  is  founded;  and 
after  all  the  pains  which  other  public  engagements  have  allowed 
us  to  bestow  on  this  particular  case,  no  authorities  have  been 
discovered,  having  an  essential  bearing  upon  it,  which  had  es- 
caped the  diligence  of  the  counsel  employed  in  the  argument. 

The  public  importance  of  the  questions  has  induced  us  to 
delay  forming  a  conclusive  opinion,  while  there  was  any  room 
to  suppose  we  might  be  mistaken;  and  doubts,  which  have  until 
a  late  period  prevailed  with  one  or  other  of  us,  owing  to  a 
want  of  time  for  examination,  rather  than  to  any  intrinsic  diffi- 
culty in  the  case,  have  occasioned  repeated  revisions  of  the 
arguments  of  counsel,  and  frequent  recurrence  to  the  authorities 
cited.  Our  minds  are  now  definitely  settled;  and  we  hope  to 
be  able  to  show  that  the  result  we  have  come  to  is  supported  by 
the  best-approved  principles  of  the  common  law,  and  conform- 
able to  decisions,  ancient  and  modern,  in  analogous  cases.  In 
attempting  to  do  this,  we  shall  consider:  1.  Wliether  the  bank 
made  any  contract  with  the  plaintiffs'  testator;  2.  What  is  the 
nature  of  that  contract ;  3.  Whether  it  has  been  violated. 

1.  On  the  first  point  we  have  had  little  difficulty;  for,  not- 
withstanding the  act  of  incorporation  gives  no  particular  au- 
thority or  power  to  receive  special  deposits,  and  although  the 
verdict  finds  that  there  was  no  regulation  or  by-law  relative  to 
such  deposits,  or  any  account  of  them  required  to  be  kept  and 
\aid  before  the  directors  or  the  company,  or  any  practice  of  ex- 
amining them ;  yet  as  it  is  found  that  the  bank,  from  the  time  of 
its  incorporation,  has  received  money  and  other  valuable  things 
in  this  way,  and  as  the  practice  was  known  to  the  directors,  and, 
we  think,  must  be  presumed  to  have  been  known  to  the  com- 
pany, as  far  as  a  corporation  can  be  affected  with  knowledge; 

64 


FOSTEE  V.  ESSEX  BANK.  §  19 

and  as  the  building  and  vaults  of  the  company  were  allowed  to 
be  used  for  this  purpose,  and  their  officers  employed  in  receiv- 
ing into  custody  the  things  deposited,  the  corporation  must  be 
considered  the  depositary,  and  not  the  cashier  or  other  officer 
through  whose  particular  agency  commodities  may  have  been 
received  into  the  bank. 

No  authorities  are  necessary  to  support  this  position.  It  rests 
upon  common  and  familiar  principles.  The  master  and  owner 
of  a  house  or  warehouse,  allowing  his  servants  or  clerks  to  re- 
ceive for  custody  the  goods  of  another,  and  especially  if  the 
practice  be  general  and  unlimited,  as  is  the  case  with  banks  in 
relation  to  special  deposits,  will  be  considered  the  bailee  of  the 
goods  so  received,  and  will  incur  the  duties  and  liabilities  be- 
longing to  that  relation.  Not  so  if  the  servant,  secretly  and 
without  the  knowledge,  express  or  implied,  of  the  master,  he 
not  having  authorized  or  submitted  to  the  practice,  receives  the 
goods  for  such  purpose,  for  no  man  can  be  made  the  bailee  of 
another's  property  without  his  consent;  and  there  must  be  a 
contract,  express  or  implied,  to  induce  a  liability.  The  knowl- 
edge and  permission,  expressly  feund  or  legally  to  be  presumed 
in  this  case,  establishes  a  contract  between  the  parties.  And 
this  brings  us  to  the  consideration  of  the  second  point,  viz. : 

2.  The  nature  and  legal  qualities  of  this  contract.  It  will  not 
be  disputed  that  if  it  amounts  only  to  a  naked  bailment,  without 
reward  and  without  any  special  undertaking,  which  in  the  civil 
and  common  law  is  called  depositum,  the  bailee  will  be  answer- 
able only  for  gross  negligence,  which  is  considered  equivalent 
to  a  breach  of  faith,  as  every  one  who  receives  the  goods  of 
another  in  deposit,  impliedly  stipulates  that  he  will  take  siome 
degree  of  care  of  it.  The  degree  of  care  which  is  necessary  to 
avoid  the  imputation  of  bad  faith  is  measured  by  the  carefulness 
which  the  depositary  uses  towards  his  own  property  of  a  similar 
kind.  For,  although  that  may  be  so  slight  as  to  amount  even 
to  carelessness  in  another,  yet  the  depositor  has  no  reason  to 
expect  a  change  of  character  in  favor  of  his  particular  interest; 
and  it  is  his  own  folly  to  trust  one  who  is  not  able  or  willing  to 
superintend  with  diligence  his  own  concerns. 

This  principle,  although  denied  by  Lord  Coke,  as  in  1  Inst. 
89,  b,  has  been  received  as  the  law  regulating  gratuitous  bail- 
ments, as  it  is  sometimes  called,  or  mere  deposit,  where  there  is 
no  advantage  but  to  the  depositor,  from  the  luminous  opinion 
5  65 


§  19  OF  GRATUITOUS  SEEVICES. 

of  Lord  Holt  in  tlie  celebrated  case  of  Coggs  v.  Bernard,  2  Ld. 
Raym.  909,  down  to  the  profound  and  brilliant  treatise  of  Sir 
William  Jones,  in  which,  with  a  wonderful  mixture  of  learned 
research  and  classical  illustration,  he  has  analyzed  the  compli- 
cated contract  of  bailment,  and  applied  the  principles  of  moral 
philosophy,  the  doctrines  of  the  civil  law,  and  the  usages  of  all 
nations,  ancient  and  modern,  to  the  different  branches  of  this 
diversified  subject,  so  as  to  leave  little  room  for  speculation,  ex- 
cept as  to  the  application  of  his  rules  to  particular  cases  as 
they  arise. 

The  dictum  of  Lord  Coke  that  the  bare  acceptance  of  goods 
to  keep  implies  a  promise  to  keep  them  safely,  so  that  the  de- 
positary will  be  liable  for  loss  by  stealth  or  accident,  is  entirely 
exploded;  and  Sir  W.  Jones  insists  that  such  a  harsh  principle 
cannot  be  inferred  from  Southcote's  case,  4  Co.  83,  on  which 
Lord  Coke  relied;  the  judgment  in  that  case,  as  the  modern 
civilian  thinks,  being  founded  upon  the  particular  state  of  the 
pleadings,  from  which  it  might  be  inferred  either  that  there  was 
a  special  contract  to  keep  safely,  or  gross  negligence  in  the 
depositary.  But  as  the  judges  Gawdy  and  Clench,  who  alone 
decided  that  cause,  said  that  the  plaintiff  ought  to  recover,  be- 
cause it  was  not  a  special  bailment,  by  which  the  defendant 
accepted  to  keep  them  as  his  own  proper  goods,  and  not  other- 
wise :  S.  C,  Cro.  Eliz.  815 ;  the  inference  which  Lord  Coke  drew 
from  the  decision,  that  a  promise  to  keep  implied  a  promise  to 
keep  safely,  even  at  the  peril  of  thieves,  was  by  no  means  un- 
warranted. But  the  decision,  as  well  as  the  dictum  of  Lord 
Coke  in  his  Commentary,  were  fully  and  explicitly  overruled  by 
all  the  judges  in  the  case  of  Coggs  v.  Bernard,  and  upon  the 
most  sound  principles.  It  is  so  considered  in  Hargrave  and 
Butler's  note  to  Co.  Lit.  n.  78,  and  all  the  cases  since  have 
adopted  the  principle,  that  a  mere  depositary,  without  any 
special  undertaking  and  without  reward,  is  answerable  for  the 
loss  of  the  goods  only  in  case  of  gross  negligence;  which,  as  is 
everywhere  observed,  bears  so  near  a  resemblance  to  fraud  as  to 
be  equivalent  to  it  in  its  effect  upon  contracts. 

Indeed,  the  oJd  doctrine,  as  stated  in  Southcote's  ease,  and  by 
Lord  Coke,  has  been  so  entirely  reversed  by  the  more  modern 
decisions  that  instead  of  a  presumption  arising  from  a  mere 
bailment  that  the  party  undertook  to  keep  safely,  and  was  there- 
fore chargeable  unless  he  proved  a  special  agreement  to  keep 

66 


FOSTER  V.  ESSEX  BANK.  §  19 

only  as  he  would  liis  own,  the  bailor,  if  he  would  recover,  must 
in  addition  to  the  mere  bailment  alleged  and  proved,  prove  a 
special  undertaking  to  keep  the  goods  safely ;  and  even  then,  ac- 
cording to  Sir  William  Jones,  the  depositary  is  liable  only  in 
case  of  ordinary  neglect,  which  is  such  as  would  not  be  suffered 
by  men  of  common  prudence  and  discretion;  so  that  if  goods 
deposited  with  one  who  engaged  to  keep  them  safely  were 
stolen,  without  the  fault  of  the  bailee,  he  having  taken  all  rea- 
sonable precautions  to  render  them  safe,  the  loss  would  fall 
upon  the  owner,  and  not  the  bailee. 

And  Sir  William  Blackstone,  in  his  commentary,  recognizes 
the  same  principle;  for  he  says,  "If  a  friend  delivers  anything 
to  his  friend  to  be  kept  for  him,  the  receiver  is  bound  to  restore 
it  on  demand;  and  it  was  formerly  held  that  in  the  meantime 
he  was  answerable  for  any  damage  or  loss  it  might  sustain, 
whether  by  accident  or  otherwise,  unless  he  expressly  under- 
took to  keep  them  only  with  the  same  care  as  his  own  goods ;  and 
then  he  should  not  be  answerable  for  theft  or  other  accidents. 
But  now  the  law  seems  to  be  settled  that  such  a  general  bail- 
ment will  not  charge  the  bailee  with  any  loss,  unless  it  happen 
by  gross  neglect,  which  is  construed  to  be  an  evidence  of  fraud. 
But  if  he  undertake  specially  to  keep  the  goods  safely  and 
securely,  he  is  bound  to  answer  all  perils  and  damages  that 
may  befall  them  for  want  of  the  same  care  with  which  a  prudent 
man  would  keep  his  own " :  2  Bl.  Com.  453.  And  this  certainly 
is  the  more  reasonable  doctrine;  for  the  common  understanding 
of  a  promise  to  keep  safely  would  be,  that  the  party  would  use 
due  diligence  and  care  to  prevent  loss  or  accident;  and  there  is 
no  breach  of  faith  or  trust  if,  notwithstanding  such  care,  the 
goods  should  be  spoiled  or  purloined.  Anything  more  than  this 
would  amount  to  an  insurance  of  the  goods,  which  cannot  be 
presumed  to  be  intended,  unless  there  be  an  express  agreement, 
and  an  adequate  consideration  therefor. 

The  doctrine,  as  thus  settled  by  reason  and  authority,  is  ap- 
plicable to  the  case  of  a  simple  deposit,  in  which  there  is  an 
accommodation  to  the  bailor,  and  the  advantage  is  to  him  alone. 
He  shall  be  the  loser,  unless  the  person  in  whom  he  confided 
has  shown  bad  faith  in  exposing  the  goods  to  hazards  to  which 
he  would  not  expose  his  own.  This  would  be  crassa  negligentia, 
and  for  this  alone  is  such  a  depositary  liable.  If  we  proceed 
one  step  further  in  the  gradation  of  liabilities,  we  shall  discover 

67 


§  19  OF  GKATUITOUS  SEK\aCES. 

every  legal  principle  which  can  by  possibility  affect  this  cause, 
considered  as  founded  on  a  contract  of  bailment.  It  was  urged 
by  the  plaintiff's  counsel  that  this  is  not  a  naked  bailment,  but 
is  accompanied  with  an  advantage  from  the  use  of  the  property, 
or  the  credit  derived  from  the  custody  of  it;  and  that  this 
ought  to  be  viewed  in  the  light  of  a  reward,  so  that  the  case 
will  be  brought  within  the  principle  of  bailment  for  hire  or  re- 
ward. If  it  be  so,  the  principle  applicable  to  this  species  of 
bailment  goes  no  further  than  to  make  the  bailee  liable  in 
case  of  ordinary  neglect;  so  that  if  he  shows  that  he  used  due 
care,  and  nevertheless  the  goods  were  stolen,  he  would  be  ex- 
cused. This  is  the  doctrine  of  Sir  "William  Jones,  and  was  the 
opinion  of  Lord  Kenyon  in  the  case  of  Finnucane  v.  Small,  1 
Esp.  315,  cited  in  the  argument,  which,  though  a  nisi  prius 
decision,  is  satisfactory  evidence  of  the  law,  as  two  very  eminent 
sergeants  acquiesced  in  his  opinion.  And  this  is  also  reason- 
able, for  one  who  takes  goods  into  his  warehouse  to  keep  for  a 
stipulated  price,  does  not  intend  to  insure  them  against  fire  and 
thieves.  His  compensation  is  only  in  the  nature  of  rent;  or  if 
anything  beyond  that,  only  for  the  vigilance  of  a  man  of  com- 
mon prudence.  If  he  locks  and  fastens  the  warehouse  as  other 
prudent  people  do,  and  thieves  break  through  and  steal,  he 
ought  not  to  be  accountable;  if  he  leave  the  door  or  windows 
open,  he  ought  to  be.  The  common  sense  of  mankind  must 
acquiesce  in  these  reasonable  provisions  of  the  law;  and  with- 
out doubt  the  common  dealings  of  men  are  governed  by  them  as 
principles  of  natural  justice,  without  a  knowledge  of  the  positive 
law. 

Having  thus  settled,  satisfactorily  to  ourselves,  the  principles 
by  which  our  judgment  in  this  action  is  to  be  guided,  we  pro- 
ceed to  a  consideration  of  the  facts,  in  order  to  ascertain  under 
what  species  of  bailment  the  plaintiffs'  property  was  committed 
to  the  keeping  of  the  defendants.  It  has  been  before  observed 
that  as  it  was  received  into  their  building  and  placed  in  their 
vaults  by  their  servants,  according  to  a  practice  allowed  of  by 
them,  they  must  be  responsible  in  some  degree,  and  are  bound 
to  restore  it,  or  the  value,  unless  it  has  been  lost  by  some 
accident  for  which  they  are  not  liable  by  the  nature  of  their 
contract.  We  think  there  is  no  doubt  that  on  such  a  deposit 
an  action  of  trover  would  lie  against  the  corporation,  if  they 
should  refuse  to  deliver  the  property  on  demand,  and  assumpsit 

68 


FOSTER  V.  ESSEX  BANK.  §  19 

might  also  be  maintained,  it  being  settled  by  the  later  author- 
ities that  either  action  may  be  maintained  against  an  incor- 
porated company,  as  well  as  against  a  natural  person,  although 
the  doings  on  which  the  action  is  founded  are  not  verified  by 
the  seal  of  the  corporation.  Vide  the  opinion  of  Mr.  Justice 
Story  in  the  case  of  The  Bank  of  Columbia  v.  Patterson,  7 
Cranch,  299,  in  which  all  the  learning  upon  the  subject  of  cor- 
porate liabilities  is  exhausted. 

Looking  into  the  special  verdict,  we  find  the  money  of  the 
plaintiffs'  testator  contained  in  a  chest  which  was  locked,  and 
the  key  kept  by  his  agent,  was  received  into  the  bank  by  W.  S. 
Gray,  the  cashier,  in  the  presence  of  W.  Orne,  who  was  presi- 
dent of  the  bank  at  the  time.  The  money,  being  gold,  was 
weighed  in  the  presence  of  the  president  and  cashier,  and  a 
memorandum  of  the  different  pieces  in  separate  bags  taken  by 
the  cashier  and  given  to  Mr.  Bond,  the  testator's  agent,  with 
the  writing  signed  by  Mr.  Gray  as  cashier,  viz.,  "Left  at  Essex 
Bank  for  safe-keeping."  The  verdict  finds  that  the  chest  con- 
taining the  gold  was  left  at  the  bank  as  a  special  deposit ;  that 
the  bank  was  not  authorized  to  use  the  money,  or  treat  it  other- 
wise than  as  a  special  deposit;  that  it  was  kept  in  the  vault  of 
the  bank  until  it  was  removed  to  Haverhill  for  better  security 
in  time  of  war,  with  the  consent  and  at  the  expense  of  the 
owner ;  that  after  the  danger  was  over  it  was  brought  back  and 
replaced  in  the  vaults  of  the  bank,  with  the  specie  belonging  to 
the  bank,  and  there  remained  until  it  was  pilfered  as  afterwards 
stated  in  the  verdict.  Mr.  Bond,  the  agent  of  the  o^vner,  was 
in  the  practice  of  coming  to  the  bank  to  look  into  the  vault  to 
see  that  the  money  was  safe,  but  it  did  not  appear  that  he 
opened  the  cask  or  counted  the  money.  Some  of  the  doubloons 
were  delivered  to  the  agent,  on  the  order  of  the  testator,  hy  the 
cashier  in  August,  1817;  and  at  other  times  other  doubloons 
were  delivered  in  the  same  manner  on  similar  orders.  At  each 
of  these  times  the  cask  was  opened  by  the  cashier  or  chief  clerk 
to  deliver  the  doubloons  pursuant  to  orders.  This  was  done 
without  the  knowledge  of  any  of  the  directors.  They  knew 
nothing  of  the  delivery  of  the  doubloons,  nor  was  any  account 
taken  of  them  in  the  books  of  the,  bank.  It  is  found  that  no 
return  or  statement  of  special  deposits  was  ever  made  to  the 
directors  by  the  cashier;  and  that  such  deposits  are  made  and 
taken  away  without  the  particular  knowledge  of  tha  directorSj 

69 


§  19  OF  GRATUITOUS  SERVICES. 

although  they  know  it  is  the  practice  so  to  receive  and  take 
them.  The  directors  knew  nothing  of  the  nature  or  amount  of 
this  or  any  other  special  deposit,  unless  such  knowledge  may  be 
presumed  from  the  agency  of  the  president  and  cashier  in  re- 
ceiving this  deposit,  or  of  the  cashier  when  he  delivered  the 
doubloons  pursuant  to  orders.  And  it  is  found  not  to  be  the 
practice  of  this  or  any  other  bank,  for  the  directors  to  inspect 
or  examine  special  deposits,  and  it  is  considered  improper  for 
any  officer  to  do  so  without  the  consent  of  the  depositor. 

Upon  this  state  of  facts,  we  think  it  must  be  manifest  that,  as 
far  as  the  bank  was  concerned,  this  was  a  mere  naked  bailment 
for  the  accommodation  of  the  depositor,  and  without  any  ad- 
vantage to  the  bank,  which  can  tend  to  increase  its  liability  be- 
yond the  effect  of  such  a  contract.  No  control  whatever  of  the 
chest,  or  of  the  gold  contained  in  it  was  left  with  the  bank  or 
its  officers.  It  would  have  been  a  breach  of  trust  to  have  opened 
the  chest  or  to  inspect  its  contents.  The  owner  could  at  any 
time  have  withdrawn  it,  there  being  no  lien  for  any  price  of  its 
custody,  and  it  was  not  thought  that  the  bank  had  authority  to 
remove  it  to  a  place  of  greater  safety  without  the  orders  of  the 
owner.  If  it  be  possible  to  constitute  a  gratuitous  bailment,  or 
a  simple  deposit,  this  was  one,  unless  the  memorandum  given 
by  the  cashier  altered  its  character,  or  unless  the  nature  of  such 
a  deposit  is  such  as  to  have  given  the  bank  a  right  to  derive 
profit  from  it;  both  of  which  points  have  been  contended  for 
by  the  counsel  for  the  plaintiffs. 

As  to  the  first  of  these  points  supposing  the  bank  to  be 
answerable  for  any  special  undertaking  of  the  cashier,  we  per- 
ceive no  evidence  of  such  an  undertaking  in  this  case.  The 
writing  signed  by  the  cashier  is  merely  a  memorandum,  signify- 
ing that  the  chest  and  its  contents  were  left  in  the  bank  for 
safe-keeping.  It  contains  no  promise,  and  assumes  no  risk  other 
than  would  be  derived  from  the  mere  delivery  without  any 
writing.  Nor  does  it  receive  any  additional  force  from  the 
presence  of  Mr.  Orne,  and  his  certificate  of  the  gold  having  been 
weighed  in  his  presence.  For  in  this  he  did  not  act  or  sign 
officially;  and  if  he  had  assumed  to  do  so,  it  not  being  within 
the  scope  of  his  authority,  as  president,  to  charge  the  bank  with 
any  special  liability,  his  act  could  not  have  bound  the  corpora- 
tion, who,  according  to  the  practice  as  found  by  the  jury,  take 
no  notice  of  special  deposits.    And  the  same  may  be  said  of  the 

70 


FOSTER  V.  ESSEX  BANK.  §  19 

memorandum  signed  by  the  cashier.  For  if  he  had  undertaken 
to  make  the  bank  specially  answerable  for  a  deposit,  contrary  to 
its  usage,  and  to  the  nature  of  the  contract  implied  by  accepting 
such  a  deposit,  such  an  undertaking,  without  previous  authority 
or  subsequent  assent,  would  have  failed  to  implicate  the  bank. 

We  think,  also,  that  there  is  nothing  in  the  nature  of  such  a 
deposit,  or  in  the  usages  of  banks  or  in  the  act  incorporating 
the  bank,  from  which  any  qualities  can  be  attached  to  this  bail- 
ment, which  do  not  belong  to  that  class  of  contracts  generally, 
where  the  advantage  is  wholly  on  the  side  of  the  depositor.  It 
was  contended  that  the  bank  might  discount  on  this  property. 
But  if  the  true  nature  of  a  special  deposit  is  understood  by  us, 
and  we  think  its  character  is  properly  described  in  the  special 
verdict,  we  are  of  opinion  this  could  not  be  done.  For  although 
the  bank,  by  implication,  are  allowed  in  the  act  of  incorporation 
to  have  credit  upon  the  simple  amount  of  all  the  moneys  de- 
posited for  safe-keeping,  we  are  satisfied  that  the  legislature 
had  reference  to  general  deposits  only  in  this  provision.  It 
does  not  appear  that  this  or  any  other  bank  ever  issued  notes 
upon  the  credit  of  special  deposits;  indeed  they  could  not,  as 
the  amount  of  such  deposits,  or  the  value  of  them,  is  generally 
wholly  unknown  to  the  directors  and  the  company.  The  eighth 
section  of  the  incorporating  act,  we  think,  clearly  shows  that 
the  deposits  referred  to  in  the  third  section  are  general  deposits. 
For  in  the  eighth  section  an  annual  account  of  the  moneys  de- 
posited is  required  to  be  made  to  the  governor  and  council,  in 
order  that  it  may  be  ascertained  whether  there  has  been  an 
excessive  issue  of  notes.  Now,  of  special  deposits,  no  such  ac- 
count can  be  rendered,  because  none  is  kept ;  and  we  have  never 
heard  that  any  bank  has  been  complained  of,  as  violating  its 
charter,  for  not  rendering  an  account  of  such  deposits. 

We  see,  then,  no  profit  to  the  bank  arising  from  special  de- 
posits unless  it  be,  as  was  suggested,  that  they  acquire  an  in- 
creased credit  with  the  community  on  their  account.  But  any 
credit  founded  upon  such  deposits  would  be  fallacious,  since 
they  cannot  be  meddled  with  by  any  officer  of  the  bank,  although 
authorized  by  a  vote  of  the  corporation,  without  a  breach  of 
trust,  which  would  subject  them  to  an  action.  As  to  the  idea 
suggested,  that  the  business  of  the  bank  may  be  facilitated  and 
increased  by  the  accommodation  given  to  special  depositors, 
the  advantage,  if  any,  is  too  minute  and  remote  to  effect  their 

71 


§  19    ,  OF  GEATUITOUS  SEEVICES. 

liability.  Such  deposits  are,  indeed,  simply  gratuitous  on  the 
part  of  the  bank,  and  the  practice  of  receiving  them  must  have 
originated  in  a  willingness  to  accommodate  members  of  the  cor- 
poration with  a  place  for  their  treasures,  more  secure  from 
fire  and  thieves  than  their  dwelling-houses  or  stores;  and  this 
is  rendered  more  probable  from  the  well-known  fact,  that  not 
only  money  or  bullion,  but  documents,  obligations,  certificates 
of  public  stocks,  wills  and  other  valuable  papers,  are  frequently, 
and  in  some  banks  as  frequently  as  money,  deposited  for  safe 
keeping.  This  is  wholly  dilTerent  from  the  deposits  contem- 
plated in  the  act  on  which  notes  may  be  issued,  for  they  enter 
into  the  capital  stock,  become  the  property  of  ^he  bank,  as  much 
as  their  other  moneys,  and  the  bank  become  debtors  to  the  de- 
positors for  the  amount. 

3.  The  contract  in  the  present  case  being  then  only  a  general 
bailment,  the  third  question  to  be  discussed  is,  whether  the  con- 
tract has  been  executed  by  the  bank.  I  use  the  word  bank  for 
the  corporation,  consisting  of  the  president,  directors  and  com- 
pany, for  the  sake  of  brevity. , 

The  rule  to  be  applied  to  this  species  of  bailment  is,  as  has 
been  stated,  that  the  depositary  is  answerable  in  case  of  loss 
for  gross  negligence  only,  or  fraud,  which  will  make  a  bailie  of 
any  character  answerable.  Gross  negligence  certainly  cannot 
be  inferred  from  anything  found  by  the  verdict;  for  the  same 
care  was  taken  of  this  as  of  other  deposits,  and  of  the  property 
belonging  to  the  bank  itself.  The  want  of  books,  showing  the 
number  and  amount  of  deposits  is  not  a  culpable  negligence; 
for  the  acceptance  of  the  deposit  being  voluntary,  the  bank  was 
not  obliged  to  incur  any  labor  or  expense  in  this  respect;  and, 
besides,  the  agent  of  the  depositor  required  nothing  but  a 
memorandum  from  the  cashier;  and  this  was  more  than  he 
could  have  insisted  on  as  a  right.  As  to  the  supposed  neglect 
and  carelessness  of  the  directors,  in  not  inspecting  the  cashier's 
accounts  more  strictly,  so  as  to  have  detected  his  fraudulent 
management  of  the  books  to  cover  his  peculation ;  this  concerned 
the  property  of  the  company,  not  that  of  special  depositors; 
and  the  reputation  of  the  cashier,  and  general  confidence  in 
him,  found  by  the  verdict,  is  a  sufficient  answer  to  any  charge 
of  negligence  in  his  original  appointment  or  continuance  in 
office. 

We  have  thus  prepared  the  way  for  the  discussion  of  the 

72 


FOSTEE  V.  ESSEX  BANK.  §  19 

great  question  in  the  case,  and  we  believe,  the  only  one  on 
which  doubts  could  be  entertained.  The  loss  was  occasioned 
by  the  fraud  or  felony  of  two  officers  of  the  bank,  the  cashier 
and  chief  clerk.  We  shall  not  consider  whether  the  act  of  tak- 
ing the  money  was  felonious  or  only  fraudulent,  as  the  distinc- 
tion is  not  important  in  this  case,  the  question  being  whether 
there  was  gross  negligence ;  and  that  fact  may  appear  by  suffer- 
ing goods  to  be  stolen,  as  well  as  if  they  were  taken  away  by 
fraud.  Fraud  on  property  deposited,  committed  by  the  depos- 
itary, or  his  servants  acting  under  his  authority,  express  or 
implied,  relative  to  the  subject-matter  of  the  fraud,  is  equivalent 
to  gross  negligence,  and  renders  the  depositary  liable.  No  fraud 
is  directly  imputed  to  the  bank,  it  being  found  that  the  direct- 
ors who  represent  the  company  were  wholly  ignorant  of  the 
transactions  of  the  cashier  and  chief  clerk  in  this  respect. 

The  point,  then,  is  narrowed  to  this  consideration,  whether 
the  corporation,  as  bailee,  is  answerable  in  law  for  the  depreda- 
tions committed  on  the  testator's  property  by  two  of  its  officers; 
and  here  it  being  thought  there  was  some  discrepancy  in  the 
authorities,  we  have  felt  ourselves  obliged  to  examine  minutely 
all  which  have  been  cited,  and  all  others  having  a  bearing  on 
the  question. 

It  was  contended,  by  one  of  the  counsel  for  the  plaintiffs, 
as  a  proposition  universally  true,  that  the  principal  is  civilly 
answerable  for  all  frauds  done  by  his  agents;  and  he  is  sup- 
ported in  the  use  of  this  language  by  a  doctrine  of  Lord  Ken- 
yon,  in  the  case  of  Doe  v.  Martin,  and  also  by  Lord  Ellen- 
borough,  in  1  Campb.  127.  And  yet,  it  must  strike  the  mind  of 
every  man  of  sense,  that  this  universal  proposition  will  admit 
of,  and  indeed,  upon  principles  of  common  justice,  actually 
requires,  considerable  qualifications.  No  one  will  suppose,  if 
my  servant  commits  a  fraud  relative  to  a  subject  that  does  not 
concern  his  duty  toward  me,  that  I  shall  be  civilly  answerable 
for  such  fraud.  If  I  send  him  to  market,  and  he  steps  into  a 
shop  and  steals,  or,  upon  false  pretenses,  cheats  the  shopkeeper 
of  his  goods,  I  think  all  mankind  would  agree  that  I  am  not 
answerable  for  the  goods  he  may  thus  unlawfully  acquire ;  and 
yet  the  proposition,  as  stated,  will  embrace  a  case  of  this  kind. 
The  proposition  can  be  true  only  when  the  agent  or  servant  is, 
while  committing  the  fraud,  acting  in  the  business  of  his  prin- 
cipal or  master;  and  this  was  the  state  of  things  in  ^oth  the 

73 


§  19  OF  GEATUITOTJS  SERVICES. 

cases  which  are  cited  to  support  the  proposition,  and  they  go 
upon  the  principle  of  an  implied  authority  to  do  the  act. 

The  rule  of  law  is  correctly  laid  down  by  Sir  William  Black- 
stone,  1  Bl.  Com.  429,  viz.,  "that  the  master  is  answerable  for 
the  act  of  his  servant,  if  done  by  his  command,  either  expressly 
given  or  implied."  And  in  another  place,  "If  a  servant  by  his 
negligence  does  any  damage  to  a  stranger,  the  master  shall  an- 
swer for  his  neglect,  but  the  damage  must  be  done  while  he  is 
actually  employed  in  his  master's  service,  otherwise  the  servant 
shall  answer  for  his  own  misbehavior:"  Id.  431.  The  same  rule 
will  apply  more  strongly  to  frauds  practiced  by  the  servant. 
Christian,  in  a  note  to  this  passage,  approves  this  doctrine,  and 
illustrates  it  with  some  observations  of  his  own. 

The  supreme  court  of  the  United  States  recognize  the  same 
doctrine  in  the  case  of  The  Mechanics'  Bank  v.  The  Bank  of 
Columbia,  5  Wheat.  326,  in  which  it  is  said  that  the  liability  of 
the  principal  depends  upon  the  facts:  1.  That  the  act  was 
done  in  the  exercise;  and  2.  Within  the  limits  of  the  powers 
delegated.  Any  act,  they  say,  within  the  scope  of  the  power  or 
confidence  reposed  in  the  agent,  such  as  money  credited  in  the 
books  of  the  teller  of  a  bank,  or  proved  to  have  been  deposited 
with  him,  although  he  omits  to  credit  it.  And  in  the  case  of  El- 
lis V.  Turner,  8  T.  R.  533,  Lord  Kenyon  says :  ' '  The  defendants 
are  responsible  for  the  acts  of  their  servant  in  those  things  that 
respect  his  duty  under  them,  though  they  are  not  answerable  for 
his  misconduct  in  those  things  that  do  not  respect  his  duty  to 
them,  as  if  he,  being  master  of  the  defendants'  vessel,  were  to 
commit  an  assault  upon  a  third  person  in  the  course  of  his 
voyage."  And  upon  the  same  principle  it  has  been  holden  that 
if  a  servant  willfully  drive  his  master's  carriage  against  the  car- 
riage of  another,  the  master  is  not  liable  for  the  damages:  1 
East,  106.  And  the  reason  is  the  same;  for  in  such  case  there 
is  no  authority  from  the  master,  express  or  implied;  the  serv- 
ant in  that  act  not  being  in  the  employment  of  his  master.  In 
the  case  here  referred  to,  the  master  was  not  in  the  carriage  at 
the  time;  the  law  would  have  been  the  same  if  he  had  been 
present,  and  had  endeavored  to  prevent  the  act;  the  presence 
of  the  master  being  only  presumptive  evidence  of  authority. 

I  think  it  may  be  inferred  from  all  this,  as  a  general  rule, 
that  to  make  the  master  liable  for  any  act  of  fraud  or  negligence 
done  by  his  servant,  the  act  must  be  done  in  the  course  of  his 

74 


POSTER  V.  ESSEX  BANK.  §  19 

employment ;  and  that  if  he  steps  out  of  it  to  do  a  wrong  either 
fraudulently  or  feloniously  towards  another,  the  master  is  no 
more  answerable  than  any  stranger.  The  cases  of  innholders, 
common  carriers,  and  perhaps  ship  masters  or  seamen,  when 
goods  are  embezzled,  are  exceptions  to  the  general  rule  founded 
on  public  policy. 

We  are  then  to  inquire  whether,  in  this  case,  when  the  gold 
was  taken  from  the  cask  by  the  cashier  and  clerk,  they  were  in 
the  course  of  their  official  employment.  Their  master,  the 
bank,  had  no  right  to  meddle  with  the  cask,  or  open  it,  and  so 
could  not  lawfully  communicate  any  authority;  and  that  they 
did  not,  in  fact,  give  any,  is  found  by  the  verdict.  Nor  did 
they  in  any  manner  assent  to,  or  have  any  knowledge  of  it. 
There  are  no  circumstances,  then,  from  which  such  authority 
can  be  implied.  The  chest  or  cask  when  once  placed  in  the 
vault  was  to  remain  there  until  taken  away  by  the  owner,  or 
ordered  away  by  the  bank;  either  party  having  a  right  to  dis- 
continue the  bailment.  It  was  never  opened  but  by  order 
of  the  owner  until  it  was  opened  by  the  officers  for  a  fraudulent 
or  felonious  purpose.  It  was  no  more  within  the  duty  of  the 
cashier  than  of  any  other  officer  or  person  to  know  the  contents, 
or  to  take  any  account  of  them.  If  the  cashier  had  any  official 
duty  to  perform  relating  to  the  subject,  it  was  merely  to  close 
the  doors  of  the  vault  when  banking  hours  were  over,  that  this, 
together  with  other  property  there,  should  be  secure  from  theft. 
He  cannot,  therefore,  be  considered,  in  any  view,  as  acting 
within  the  scope  of  his  employment  when  he  committed  the  vil 
lainy,  and  the  bank  is  no  more  answerable  for  this  act  of  his 
than  they  would  be  if  he  had  stolen  the  pocket-book  of  any  per- 
son who  might  have  laid  it  upon  the  desk  while  he  was  trans 
acting  some  business  at  the  bank. 

If  it  be  asked  for  what  acts  then  of  a  cashier  or  clerk  the  bank 
would  be  answerable,  I  should  answer,  for  any  which  pertain  to 
their  official  duty,  for  correct  entries  in  their  books,  and  for  a 
proper  account  of  general  deposits,  so  that,  if  by  any  mistake  or 
by  fraud  in  these  particulars  any  person  be  injured,  he  would 
have  a  remedy.  If  they  should  rob  the  vaults  of  the  property 
of  the  bank,  the  company  would  necessarily  lose;  and  if  the 
bank  have  become  debtors  to  those  who  have  deposited  other- 
wise than  specially,  their  debts  will  not  be  diminished  by  the 
fraud;  so  that  in  this  form  they  are  answerable  to  depositors, 

75 


§  19  OF  GEATUITOUS  SEEVICES. 

and  for  the  correct  conduct  of  all  their  servants,  in  their  proper 
sphere  of  duty,  they  are  answerable.  They  may  also  be  answer- 
able for  notices  to  indorsers  upon  bills  and  notes  left  with  them 
for  collection,  if  there  should  be  a  failure  by  neglect  of  any  of 
their  servants,  because  they  have  undertaken  to  give  the  proper 
notices.  But  even  in  that  ease  it  may  admit  of  a  question 
whether  they  would  be  liable  any  further  than  attorneys  who 
undertake  the  collection  of  debts,  would  be.  But  they  are  not 
answerable  for  special  deposits  stolen  by  one  of  their  officers 
any  more  than  if  stolen  by  a  stranger,  or  any  more  than  the 
owner  of  a  warehouse  would  be  who  permitted  his  friend  to 
deposit  a  bale  of  goods  there  for  safe-keeping,  and  the  goods 
should  be  stolen  by  one  of  his  clerks  or  servants. 

The  undertaking  of  banking  corporations,  with  respect  to 
their  officers,  is  that  they  shall  be  skillful  and  faithful  in  their 
employments;  they  do  not  warrant  their  general  honesty  and 
uprightness.  And  it  is  the  same  with  individuals.  If  a  friend 
commit  to  my  care  valuable  property  to  keep  for  him,  and  it 
be  stolen  by  ray  servants,  I  shall  not  be  answerable  for  the  loss, 
as  was  stated  by  Lord  Kenyon  in  the  case  of  Finnucane  v.  Small. 
This  case,  before  referred  to  for  another  purpose,  deserves 
special  notice  upon  this  point;  for  if  it  be  law,  it  goes  the 
whole  length  of  the  case  before  us,  and  even  beyond  it;  for  the 
bailee  there  received  a  reward  for  his  custody  of  the  goods 
which  were  stolen.  The  plaintiff  was  an  officer  in  the  army, 
and  being  about  to  leave  London,  sent  his  trunk  to  the  defend- 
ant's house  for  safe  custody,  and  was  to  pay  one  shilling  a  week 
for  house-room.  When  he  returned  he  received  the  trunk,  but 
the  contents  had  been  stolen.  Lord  Kenyon  held  the  defend- 
ant not  liable,  it  appearing  that  he  had  taken  as  much  care  of 
the  trunk  as  he  had  of  his  own  goods;  and  that  if  the  goods 
were  stolen  by  the  defendant's  servants,  as  was  stated  to  have 
been  the  fact  by  the  plaintiff's  counsel,  it  would  make  no  differ- 
ence. His  lordship  no  doubt  considered  the  hire  agreed  to  be 
paid  as  mere  compensation  for  house-room,  not  as  a  reward  for 
diligence  and  care,  and  therefore  did  not  require  of  the  defend- 
ant more  care  than  he  used  about  his  own  goods,  considering  it 
as  a  simple  deposit  only.  Whether  he  wa^  right  or  not  in  this, 
there  is  no  doubt  of  the  correctness  of  his  opinion  with  respect 
to  the  agency  of  the  servants  in  the  theft ;  for  they  were  not  in 
the  course  of  their  duty  when  pilfering  the  trunk  of  its  contents. 

76 


KNOWLES  V.  ATLANTIC  AND  ST.  LAWEENCE  E.  E.  CO.  §§  19,  20 

Garrow  and  Shepherd,  eminent  sergeants,  and  since  judges, 
acquiesced  in  the  opinion. 

The  case  is  in  all  respects  like  the  one  before  us,  except  that 
the  goods  were  to  be  kept  for  hire;  and  the  difference  is  alto- 
gether in  favor  of  the  defendants  in  the  present  case.  In  an- 
swer to  this,  it  was  observed  by  the  counsel  for  the  plaintiffs 
that  the  cashier  of  the  bank  was  trusted,  and  therefore,  the 
doctrine  of  Lord  Kenyon  did  not  apply.  But  if  we  are  right  in 
the  principles  before  stated,  he  was  not  trusted  in  this  business ; 
neither  he  nor  his  principal,  the  bank,  having  anything  to  do 
with  the  chest  or  cask  but  to  give  it  a  place  in  the  vault,  and  to 
lock  it  up  when  the  hours  of  business  were  over;  and  so  the 
cashier  must  be  considered  like  the  servant  in  the  case  cited. 

Some  stress  was  laid  in  the  argument  upon  the  security  taken 
by  the  bank  of  the  cashier  for  the  faithful  discharge  of  his  duty. 
But  we  think  it  obvious  that  nothing  was  contemplated  in  the 
security  but  the  official  neglect  of  the  cashier.  The  act  of  in- 
corporation authorizes  the  bank  to  require  bonds,  in  a  sum  not 
less  than  ten  thousand  dollars;  and  a  bond  was  taken  for  that 
sum  only.  Now,  considering  this  as  one  of  the  oldest  banking 
companies  in  one  of  the  most  wealthy  towns  in  the  common- 
wealth, without  doubt  special  deposits  of  a  vast  amount  were 
from  time  to  time  received  into  the  bank  for  safe-keeping,  and 
a  bond  for  ten  thousand  dollars  could  never  have  been  taken  to 
indemnify  against  a  possible  loss  of  these. 

Upon  a  view,  therefore,  of  all  the  points  in  the  case,  and 
after  a  careful  attention  to  the  arguments  and  authorities,  we 
are  satisfied  that  upon  the  special  verdict,  judgment  must  be 
entered  for  the  defendants. 

Costs  for  the  defendants. 


20.    KNOWLES    V.    ATLANTIC    AND    ST.    LAWRENCE 
RAILROAD  CO., 

38  Me.  55;  61  Am.  D.  234.    1854. 

Action  to  recover  for  the  loss  of  sixteen  tons  of  hay. 

By  Court,  Rice,  J.  The  evidence  in  the  case  shows  that  the 
original  contract  of  the  defendants,  as  common  carriers,  was 
fully  executed  to  the  satisfaction  of  the  plaintiff.     Howe,  the 

77 


§  20  OF  GEATUITOUS  SERVICES. 

forwarding  agent  of  the  railroad  company,  in  his  deposition 
states  that  ' '  I  told  ]\Ir.  Knowles  that  the  hay  was  now  delivered 
in  good  order ;  that  that  was  an  end  of  our  contract,  and  that  it 
must  now  be  at  his  risk  against  any  damage.  He  replied  that 
he  acknowledged  he  received  it  in  good  order."  The  defendants, 
therefore,  clearly  are  not  liable  as  common  carriers.  The  case 
provides  that  if,  in  the  opinion  of  the  court,  the  plaintiff  is  en- 
titled to  recover  in  any  form  of  declaring,  the  defendants  are  to 
be  defaulted.  It  is  contended  that  they  are  liable  as  bailees  or 
depositaries.  The  hay  was  permitted  to  remain  upon  the  de- 
fendant 's  cars  for  the  accommodation  of  the  plaintiff,  and  at  his 
special  request.  For  this  the  defendant  received  no  additional 
compensation  nor  consideration.  At  most,  therefore,  they  were 
naked  bailees  or  gratuitous  depositaries. 

The  defendants  contend  that  there  was  no  responsibility  upon 
them;  that  the  whole  risk  of  loss  or  damage  to  the  hay  was 
assumed  by  the  plaintiff.  Mr.  Hamlin,  who  acted  as  agent  for 
the  plaintiff,  t(^stified  that  "Mr.  Howe  consented  that  the  hay 
might  remain  on  the  cars  (until  it  could  be  shipped),  with  the 
understanding  that  the  whole  risk  should  be  on  Mr.  Knowles. 
Mr.  Knowles  asked  at  the  time,  'Is  there  any  risk?'  or  something 
like  that.  I  told  Mr.  Knowles,  Howe  being  present  at  the  time, 
that  there  was  a  risk;  that  there  was  a  risk  in  all  cases.  He 
asked,  'What  risk?'  I  told  him  there  was  the  risk  of  fire  and 
water  or  rain ;  and  there  were  other  risks  which  could  not  then 
be  thought  of — there  were  a  thousand  risks.  After  a  little  more 
conversation  it  finally  ended  in  Mr.  Knowles  assuming  the  whole 
risk;  *  *  *  that  it  should  remain  on  the  cars,  and  at  his 
risk,  until  it  was  shipped." 

This  witness  further  testified  that  the  cars  on  which  the  hay 
then  was  were  on  the  principal  track,  from  which  they  must  be 
removed  to  make  room  for  other  trains.  The  track  down  on 
the  wharf,  and  the  one  where  the  cars  then  stood,  were  the  only 
tracks  from  which  freight  could  be  shipped. 

This  was  on  the  sixteenth  of  July,  1851.  On  the  eighteenth 
of  the  same  July,  the  cars  on  which  the  plaintiff's  hay  was 
transported,  having  been  removed,  but  under  whose  direction 
does  not  appear,  to  the  defendants'  wharf,  were  precipitated  into 
the  dock  by  the  breaking  dow^n  of  the  wharf,  in  consequence  of 
its  being  overloaded  with  railroad  iron.  This  risk,  the  plaintiff 
affirms,  was  not  contemplated  by  the  parties,  nor  assumed  by 
him,  but  was  the  consequence  of  the  gross  negligence  of  the 
defendants,  and  therefore  they  should  sustain  the  loss.  Being 
a  bailee  without  reward,  the  defendants  are  bound  to  slight  dili- 
gence only,  and  are  not  therefore  answerable  except  for  gross 

78 


KNOWLES  V.  ATLANTIC  AND  ST.  LAWRENCE  E.  E.  CO.     §  20 

neglect :  Story  on  Bailments,  sec.  62 ;  Foster  v.  Essex  Bank,  17 
Mass.  500  [9  Am.  Dec.  168] .  The  authorities  do  not  concur  in  a 
uniform  standard  by  which  to  determine  what  constitutes  gross 
negligence  in  a  gratuitous  bailee  or  depositary.  Such  a  bailee, 
who  receives  goods  to  keep  gj'atis,  is  under  the  least  responsi- 
bility of  any  species  of  trustee.  If  he  keeps  the  goods  as  he 
keeps  his  own,  though  he  keeps  his  own  negligently,  he  is  not 
answerable  for  them.  He  is  only  answerable  for  fraud,  or  that 
gross  neglect  which  is  evidence  of  fraud:  Just.  Inst.,  lib.  3,  tit. 
15,  sec.  3;  Coggs  v.  Bernard,  2  Ld.  Raym.  909,  914;  Foster  v. 
Essex  Bank,  supra;  2  Kent's  Com.  561,  562. 

Judge  Story,  in  his  work  on  bailments,  section  64.  says :  ' '  The 
depositary  is  bound  to  slight  diligence  only;  and  the  measure 
of  that  diligence  is  that  degree  of  diligence  which  persons  of  less 
than  common  prudence,  or  indeed  of  any  prudence  at  all,  take 
of  their  own  concerns.  The  measure,  abstractly  considered, 
has  no  reference  to  the  particular  character  of  an  individual; 
but  it  looks  to  the  general  conduct  and  character  of  a  whole 
class  of  persons;  and  so  Sir  William  Jones  has  intimated  on 
some  occasions. ' '  He  cites  Jones  on  Bailments,  82,  83 ;  Tompkins 
V.  Saltmarsh,  14  Serg.  &  R.  275;  Doorman  v.  Jenkins,  2  Ad.  & 
El.  256. 

Both  of  the  above  rules,  which  on  a  strict  analysis  will  not  be 
found  in  any  essential  point  dissimilar,  are  subject,  under  some 
circumstances,  to  modification.  Thus  when  the  bailor  or  de- 
positor not  only  knows  the  general  character  and  habits  of  the 
bailee  or  depositary,  but  the  place  where  and  the  manner  in 
which  the  goods  deposited  are  to  be  kept  by  him,  he  must  be 
presumed  to  assent,  in  advance,  that  his  goods  shall  be  thus 
treated;  and  if  under  such  circumstances  they  are  damaged  or 
lost,  it  is  by  reason  of  his  own  fault  or  folly.  He  should  not 
have  entrusted  them  with  such  a  depositary,  to  be  kept  in  such 
a  manner  and  place.  Applying  these  principles  to  the  case 
under  consideration,  and  whatever  view  we  may  take  of  the 
extent  of  the  plaintiff's  liability  by  reason  of  his  special  con- 
tract, the  result  can  not  be  doubtful.  That  it  was  the  expecta- 
tion of  both  parties  that  the  hay  was  to  be  shipped  from  the 
defendants'  wharf  is  very  apparent.  That  wharf  was  open  to 
the  inspection  of  the  world.  The  plaintiff  had  the  same  oppor- 
tunity to  observe  its  condition  as  the  defendants.  The  iron  by 
which  it  was  ultimately  carried  down  had  been  deposited  upon 
it  months  before.  No  additional  incumbrance  appears  to  have 
been  placed  upon  the  wharf  by  the  defendants  after  the  arrival 
of  the  hay  before  it  finally  broke  down. 

79 


§  20  OF  GKATUITOUS  SEEVICES. 

In  view  of  all  the  facts  in  the  ease,  and  independent  of  the 
special  contract  testified  to  by  Mr.  Hamlin,  we  are  of  opinion 
that  the  defendants  are  not  liable.  Therefore,  according  to 
agreement,  a  nonsuit  must  be  entered. 


CHAPTEE  IV. 

B.      OF   GRATUITOUS  LOANS. 

See  the  cases  in  §§  1,  3,  8,  14,  15. 


11.     OF  MUTUAXi  BENEFIT  BAILMENTS. 
CHAPTER  V. 

CLASSIFICATION  AND  GENERAL  PRINCIPLES. 

See  the  cases  in  §  §  18,  33. 


80 


CHAPTER  VI. 

A.      PIGNUS,  OR  PLEDGE. 

X  21.     STEARNS  V.  IMARSH, 

4  Denio  (N.  Y.)  227;  47  Am.  D.  248.    1847. 

Assumpsit  on  a  note,  secured  by  ten  cases  of  boots  deposited 
with  plaintiff.  Verdict,  under  instructions  from  the  court,  for 
the  balance  due  on  the  note. 

By  Court,  Jewett,  J.  The  contract  between  these  parties  was 
strictly  a  pledge  of  the  boots  and  shoes.  At  common  law,  a 
pledge  is  defined  to  be  a  bailment  of  personal  property,  as  a  se- 
curity for  some  debt  or  engagement:  2  Kent's  Com.  577,  5th 
ed. ;  Story  on  Bail.,  sec.  286.  The  plaintiff's  debt,  thus  se- 
cured, became  payable  on  the  eighth  day  of  November,  1837. 
On  the  fifteenth  of  that  month,  the  plaintiffs  caused  the  pledge 
to  be  sold  at  a  public  sale  by  an  auctioneer  in  Boston,  pursuant 
to  a  public  notice  published  in  certain  newspapers  in  that  city 
from  the  second  to  the  fifteenth  of  November  inclusive;  but  no 
notice  of  sale,  or  to  redeem,  was  at  any  time  given  to  the  de- 
fendants. The  net  proceeds  of  the  sale  was  one  hundred  and 
sixty-six  dollars  and  ninety-seven  cents,  which  the  plaintiff's  ap- 
plied on  their  debt  without  the  assent  of  the  defendants. 

The  first  question  made  on  the  argument  is,  whether  the  sale 
thus  made  was  authorized  and  bound  the  defendants.  On  the 
part  of  the  plaintiffs  it  was  insisted,  that  the  pledge  having  been 
made  as  a  security  for  their  debt,  which  was  payable  at  a  future 
day,  the  plaintiff's  had  a  right,  after  a  default  in  payment,  to  sell 
the  pledge,  fairly  in  the  usual  course  of  business,  without  call- 
ing on  the  defendants  to  redeem,  or  giving  them  notice  of  the 
intended  sale :  and  that  such  sale  concluded  the  defendants.  It 
is  said  that  the  law  makes  a  distinction  between  the  case  of  a 
pledge  for  a  debt  payable  immediately,  and  one  where  the  debt 
does  not  become  payable  until  a  future  day;  and  that  in  the 
latter  case  the  creditor  is  not  bound  to  call  for  a  redemption  or 
to  give  notice  of  sale,  though  in  the  former  it  is  conceded  that 
there  must  be  such  demand  and  that  notice  must  be  given. 
Non-payment  of  the  debt  at  the  stipulated  time  did  not  work  a 
forfeiture  of  the  pledge,  either  by  the  civil  or  at  the  common 
law.  It  simply  clothed  the  pledgee  with  authority  to  sell  the 
6  81 


§  21  PIGNUS,  OR  PLEDGE. 

pledge  and  reimburse  himself  for  his  debt,  interest,  and  ex- 
penses ;  and  the  residue  of  the  proceeds  of  the  sale  then  belonged 
to  the  pledgor.  The  old  rule,  existing  in  the  time  of  Glanville, 
required  a  judicial  sentence  to  warrant  a  sale,  unless  there  was 
a  special  agreement  to  the  contrary.  But  as  the  law  now  is,  the 
pledgee  may  file  a  bill  in  chancery  for  a  foreclosure  and  proceed 
to  a  judicial  sale ;  or  he  may  sell  without  judicial  process,  upon 
giving  reasonable  notice  to  the  pledgor  to  redeem,  and  of  the 
intended  sale. 

I  find  no  authority  countenancing  the  distinction  contended 
for;  but  on  the  contrary,  I  understand  the  doctrine  to  be  well 
settled,  that  whether  the  debt  be  due  presently  or  upon  time,  the 
rights  of  the  parties  to  the  pledge  are  such  as  have  been  stated : 
Cortelyou  v.  Lansing,  2  Cai.  Cas.  204;  2  Kent's  Com.,  5th  ed., 
581,  582 ;  4  Id.  138,  139 ;  Tucker  v.  Wilson,  1  P.  Wms.  261 ;  Lock- 
wood  V.  Ewer,  2  Atk.  303 ;  Johnson  v.  Vernon,  1  Bail.  527 ;  Perry 
V.  Craig,  3  Mo.  516 ;  Parker  v.  Brancker,  22  Pick.  40 ;  De  Lisle  v. 
Priestman,  1  Browne  (Pa.),  176;  Story's  Com.  on  Eq.,  sec.  1008; 
Story  on  Bailm.,  sec.  309,  310,  346 ;  Hart  v.  Ten  Eyck,  2  Johns. 
Ch.  100;  Patchin  v.  Pierce,  12  Wend.  61;  Garlick  v. 
James,  12  Johns.  146  [7  Am.  Dec.  294] .  Nor  do  I  see  any  reason 
for  such  a  distinction.  In  either  case  the  right  to  redeem  equally 
exists  until  a  sale :  the  pledgor  is  equally  interested,  to  see  to  it 
that  the  pledge  is  sold  for  a  fair  price.  The  time  when  the  sale 
may  take  place  is  as  uncertain  in  the  one  case  as  in  the  other; 
both  depend  upon  the  will  of  the  pledgee,  after  the  lapse  of  the 
term  of  credit  in  the  one  case,  and  after  a  reasonable  time  in  the 
other;  unless  indeed  the  pledgor  resorts  to  a  court  of  equity  to 
quicken  a  sale.  Personal  notice  to  the  pledgor  to  redeem,  and  of 
the  intended  sale,  must  be  given  as  well  in  the  one  case  as  in  the 
other,  in  order  to  authorize  a  sale  by  the  act  of  the  party.  And 
if  the  pledgor  can  not  be  found  and  notice  can  not  be  given  to 
him,  judicial  proceedings  to  authorize  a  sale  must  be  resorted  to : 
2  Story's  Com.  on  Eq.,  sec.  1008.  Before  giving  such  notice,  the 
pledgee  has  no  right  to  sell  the  pledge;  and  if  he  do,  the 
pledgor  may  recover  the  value  of  it  from  him,  without  tendering 
the  debt ;  because  by  the  wrongful  sale  the  pledgee  has  incapaci- 
tated himself  to  perform  his  part  of  the  contract,  that  is  to  re- 
turn the  pledge,  and  it  would  therefore  be  nugatory  to  make  the 
tender:  Cortelyou  v.  Lansing,  supra;  Story  on  Bail.  (2d  ed.) 
349 ;  McLean  v.  Walker,  10  Johns.  472. 

The  evidence  in  this  case  shows  that  the  plaintiffs,  in  Novem- 
ber, 1837,  long  prior  to  the  commencement  of  this  suit,  tor- 
tiously  sold  the  pledge,  and  thereby  put  it  entirely  beyond  their 
power  to  return  it,  upon  payment  of  the  debt.    Where  a  pledge 

82 


STEAENS  V.  MARSH.  §  21 

is  made  by  a  debtor  to  his  creditor  to  secure  his  debt,  for  a  cer- 
tain term,  the  law  requires  that  the  latter  shall  safely  keep  it 
■^thout  using  it,  so  as  to  cause  any  detriment  thereto;  and  if 
any  detriment  happens  to  it  within  the  term  appointed,  it  may 
be  set  off  against  the  debt,  according  to  the  damage  sustained. 
And  if  the  pledge  is  made  without  mention  of  any  particular 
term,  the  creditor  may  demand  his  debt  at  any  time.  When  the 
debt  is  paid,  the  creditor  is  bound  to  restore  the  pledge  in  the 
condition  he  received  it,  or  make  satisfaction  for  any  injury 
that  it  has  received;  for  it  is  a  rule,  that  a  creditor  is  to  re- 
store the  pledge  or  make  satisfaction  for  it ;  if  not,  he  is  to  lose 
his  debt:  1  Reeve's  Hist.  Eng.  L.  161,  162.  If  the  pledgor,  in 
consequence  of  any  default  of  the  pledgee,  or  of  his  conversion 
of  the  pledge,  has  by  any  action  recovered  the  value  of  the 
pledge,  the  debt  in  that  case  remains,  and  is  recoverable,  unless 
in  such  prior  action  it  has  been  deducted.  By  the  common  law 
the  pledgee,  in  such  an  action  brought  for  the  tort,  has  a  right  to 
have  the  amount  of  his  debt  recouped  in  the  damages :  Bac.  Abr., 
Bailment,  B;  Jarvis  v.  Rogers,  15  Mass.  389;  Story  on  Bail. 
(2d  ed.)  sees.  315,  349. 

The  plaintiffs  were  wrong-doers  in  selling  the  pledge  at  the 
time  they  did,  without  notice  to  redeem  or  of  the  sale  being 
given  to  the  defendants;  and  it  is  shown  that  the  value  of  the 
pledge  at  the  time  equaled,  if  it  did  not  exceed,  the  debt  which 
it  was  made  to  secure.  The  counsel  for  the  defendants,  in  effect, 
offered  to  recoup  their  damages  arising  from  the  plaintiffs' 
breach  of  the  contract  of  pledge,  but  was  not  permitted  to  do  so. 
It  is  urged  by  the  plaintiffs'  counsel,  that  the  defense  was  not  ad- 
missible under  the  pleadings;  but  I  am  satisfied  that  it  was 
unnecessary  to  plead  specially,  or  to  give  notice  of  the  matters 
relied  on.  The  evidence  establishes  that  the  plaintiffs  had  no 
cause  of  action,  and  the  defense  is  fairly  covered  by  the  plea  of 
non  assumpsit :  Batterman  v.  Pierce,  3  Hill,  171 ;  Barber  v. 
Rose,  5  Id.  76 ;  Ives  v.  Van  Epps,  22  Wend.  155.  The  defend- 
ants clearly  had  an  election  of  remedies  against  the  plaintiffs 
for  the  conversion  of  the  pledge.  They  could  maintain  trover  or 
assumpsit,  and  in  the  latter  action  could  recover  the  value  under 
the  common  counts:  Hill  v.  Perrott,  3  Taunt.  274;  Butts  v. 
Collins,  13  Wend.  139-154.  If  assumpsit  was  maintainable  by 
them,  they  may,  in  an  action  by  the  plaintiffs,  set  off  the  value 
of  the  boots  an(i  shoes  as  for  such  property  sold.  There  is  no 
valid  objection  on  the  ground  that  the  damages  are  unliquidated 
or  imcertain.  The  case  of  Butts  v.  Collins  is  decisive  on  that 
point.    There  must  be  a  new  trial. 

New  trial  granted. 

83 


§  22  PIGNUS,  OE  PLEDGE. 

22.    HALL  V.  PAGE, 

4  Ga.  428;  48  Am.  D.  235.    1848. 

Trover  by  Page  for  note  given  in  payment  for  certain  buggies, 
harness  and  carpets  sold  by  Hall,  in  part  as  agent  for  Page  and 
in  part  for  himself.  He  took  in  payment  the  note  in  question 
upon  six  months'  time. 

By  Court,  Nesbit,  J.  (Omitting  other  points.)  5.  On  the  day 
that  the  goods  were  deliverd  to  the  defendant,  the  plaintiff 
received  from  him  two  notes,  as  collateral  security,  for  the 
payment  of  the  price  of  them.  One  of  these  notes,  one  hun- 
dred and  thirty-five  dollars  in  amount,  was  paid  to  him.  The 
payment  was  after  this  suit  was  commenced,  and  subse- 
quent to  the  service  of  a  process  of  garnishment  upon  the 
plaintiff,  sued  out  at  the  instance  of  other  creditors  of  the 
defendant.  Upon  the  motion  for  a  new  trial,  it  was  claimed 
that  the  verdict  was  erroneous,  in  this;  that  this  sum  of  one 
hundred  and  thirty-five  dollars  was  not  allowed  as  a  credit 
to  the  defendant.  The  court,  upon  this  point,  ruled;  "that  by 
the  evidence  this  sum  was  held  subject  to  summons  of  gar- 
nishment at  the  instance  of  Hall's  (the  defendant's)  creditors. 
It  is  very  certain  that  either  Hall  or  his  creditors  have  a  right 
to  that  money.  Both  can  not  have  it,  and  Page  (the  plaintiff) 
can  not  be  delayed  in  his  suit  until  the  controversy  between  Hall 
and  his  creditors  shall  be  ended.  The  jury,  therefore,  properly 
refused  to  abate  Page's  damages  for  that  sum."  The  opinion 
of  the  court  thus  expressed,  is  excepted  to.  We  can  not  assent 
to  the  doctrine  that  collateral  securities,  pledged  hona  fide  for 
the  payment  of  a  debt  without  any  trust  reserved,  belong  to  the 
pledgor  or  his  creditors.  That  is  to  say,  that  they  belong  to  him 
or  them,  in  any  sense,  which  will  defeat  the  pledgee's  right  to 
them,  or  which  is  the  same  thing,  to  money  raised  on  them  as 
security  for  his  debt.  That  right  is  paramount  to  the  rights  of 
other  creditors,  and  is  good  against  the  pledgor  himself,  until 
the  debt  is  paid.  The  pendency  of  a  garnishment  makes  no  dif- 
ference. The  pendency  of  this  suit  assumes  that  the  debt  is  due. 
If  this  action  can  be  sustained — if  that  assumption  be  true — 
upon  the  trial,  it  was  competent  for  the  court  to  appropriate 
the  money  received  on  the  collaterals,  to  the  plaintiff,  and  of 
course  to  credit  the  defendant.  It  ought  to  have  been  so  ap- 
propriated. There  was  no  necessity  to  await  an  issue  on  the 
garnishment.  The  court,  on  the  trial  of  this  suit,  had  jurisdic- 
tion of  the  matter.  It  did,  in  fact,  exercise  that  jurisdiction  by 
determining  that  this  money  belonged  to  the  defendant  or  his 

84 


HALL  V.  PAGE.  §  22 

creditors.  If  it  belonged  to  the  defendant,  it  was  pledged  to  pay 
this  very  debt.  The  creditors  of  the  defendant  had  no  rights 
in  it,  until  the  pledgee  is  paid.  There  could,  therefore,  be  no 
controversy  about  it,  between  the  defendant  and  the  creditors, 
until  the  debt  of  the  plaintiff  is  paid.  But  the  debt,  by  the 
record,  is  not  paid.  The  very  question  is,  shall  it  be  now  paid, 
to  the  extent  of  the  money  in  hand  ?  The  plaintiff  is  not  delayed 
at  all.  He  is  expedited;  for  a  judgment  that  this  money  be  al- 
lowed as  a  credit  to  the  defendant,  is  an  instantaneous  payment 
to  him.  An  appropriation  in  this  way  to  the  plaintiff  would 
protect  him  on  the  trial  of  the  garnishment.  Whether  appro- 
priated or  not,  his  rights  in  this  money  are  paramount  to  those 
of  the  garnishing  creditors.  There  is  nothing  in  this  record,  it 
may  be  proper  to  remark,  which  impeaches  the  fairness  of  this 
pledge.  It  is  not  obnoxious  to  the  act  of  1818,  or  any  other 
law  of  the  state.  Upon  the  traverse  of  the  plaintiff' 's  answer  to 
the  garnishment  (he  answering  truly,  as  this  record  discloses 
the  facts),  I  apprehend  that  the  garnishing  creditors  could  not 
get  a  judgment  against  the  plaintiff,  until  they  had  first  proven 
that  this  debt  was  paid.  In  that  event,  it  is  true,  these  collaterals 
and  this  money  would  belong  to  the  defendant  or  his  creditors. 
But  only  in  that  event. 

We  examine  this  doctrine  a  little.  We  say  that  the  deposit 
of  these  notes  in  the  hands  of  the  plaintiff,  as  collateral  secur- 
ity for  this  debt,  is  a  pawn  or  pledge.  A  pledge  is  a  bailment 
of  personal  property  as  security  for  some  debt  or  engagement : 
Story  on  Bail.,  sec.  286.  Ordinarily,  goods  and  chattels  are  the 
subject  of  pledges;  but  money,  debts,  negotiable  instruments, 
choses  in  action,  etc.,  may  by  the  common  law  be  delivered  in 
pledge:  Kemp  v.  Westbrook,  1  Ves.  sen.  278;  Lockwood  v. 
Ewer,  9  Mod.  278 ;  Seamer  v.  Bingham,  3  Atk.  56 ;  McLean  v. 
Walker,  10  Johns.  471,  475;  Roberts  v.  Wyatt,  2  Taunt.  268; 
Jarvis  v.  Rogers,  13  Mass.  105 ;  15  Id.  389 ;  Garlick  v.  James, 
12  Johns.  146  [7  Am.  Dec.  274]  ;  Story  on  Bail.,  sec.  290. 

What  are  the  rights  of  the  pledgee  in  the  thing  pledged  gen- 
erally? In  virtue  of  the  pawn,  he  acquires  a  special  property 
in  the  thing,  and  is  entitled  to  the  exclusive  possession  of  it, 
during  the  time,  and  for  the  objects  for  which  it  is  pledged: 
Story  on  Bail.,  sec.  303;  Jones  on  Bail.,  sec.  80;  Cortelyou  v. 
Lansing,  2  Cai.  Gas.  202;  Garlick  v.  James,  12  Johns.  146  [7 
Am.  Dec.  294]  ;  Ratcliff  v.  Davis,  1  Bulst.  29;  Cro.  Jac.  244; 
Coggs  V.  Bernard,  2  Ld.  Raym.  909,  916;  2  Kent's  Com. 
578,  585,  4th  ed.;  1  Bell's  Com.  200,  4th  ed. ;  Whitaker  v.  Sum- 
ner, 20  Pick.  399,  405 ;  Jones  v.  Baldwin,  12  Id.  316.  The  right 
of  possession  is  exclusive — that  is,  it  is  good  against  all  the  world, 

85  I 


§  22  PIGNUS,  OE  PLEDGE. 

for  the  purpose  for  which  it  is  pledged — in  this  ease,  that  pur- 
pose is  the  payment  of  a  debt.  For  that  purpose,  the  right  to 
the  thing  is  perfect.  It  yields  to  no  other  right  which  did  not 
attach  upon  it,  in  the  shape  of  a  lien,  prior  pledge,  or  some  claim 
existing  prior  to  the  pledge,  and  good  in  law.  It  is  perfect 
against  the  pledgor.  For  if  he  wrongfully  get  possession,  a  suit 
in  favor  of  the  pawnee  wiU  lie  against  him  for  the  thing,  or  for 
damages.  He  can  bring  an  action  for  it,  also  against  a  stranger, 
or  an  action  against  the  stranger  for  damages:  Wilbraham  v. 
Snow,  2  Saund.  47,  note;  Woodruff  v.  Halsey,  8  Pick.  333  [19 
Am.  Dec.  329];  2  Kent's  Com.  585,  4th  ed. ;  Story  on  Bail., 
sec.  303 ;  Lyle  v.  Barker,  5  Binn.  457. 

He  has  also  a  right  to  sell  the  pledge  where  there  has  been  a  de- 
fault in  the  pledgor ;  if  there  is  no  stipulated  time  when  the  debt 
shall  be  paid,  the  pawnee  may  sell  upon  demand  and  notice: 
Story  on  Bail.,  sec.  308;  2  Kent's  Com.  581,  582,  4th  ed. ;  2 
Story's  Eq.  Jur.,  sees.  1031-1033;  Holt's  N.  P.  385.  He  may 
file  a  bill  in  equity  for  foreclosure  and  sale,  or  upon  demand 
and  notice  proceed  to  sell,  ex  mero  motii,  at  his  election;  Kemp 
V.  Westbrook,  1  Ves.  sen.  278;  Garlick  v.  James,  12  Johns. 
146  [7  Am.  Dec.  249];  2  Story's  Eq.  Jur.,  sees.  1031-1033; 
Patchin  v.  Pierce,  12  Wend.  61;  Hart  v.  Ten  Eyck,  2  Johns. 
Ch.  62 ;  Story  on  Bail.,  sec.  310.  These  are  the  principal  rights 
of  the  pawnee.  What,  specially,  are  the  rights  of  the  pawnee  of 
negotiable  securities?  He  may  recover  and  receive  the  money 
due  thereon ;  he  may  bring  suit  upon  them  in  his  own  name : 
Id.  321;  Bowman  v.  Wood,  15  Mass.  534;  Garlick  v.  James,  12 
Johns.  146  [7  Am.  Dec.  294].  He  may  sell  them,  and  if  he  sells 
to  a  bona  fide  purchaser,  the  latter  acquires  an  absolute  prop- 
erty, if  he  buys  without  notice :  Story  on  Bail.,  sec.  322 ;  1 
Story's  Eq.  Jur.,  sees.  434,  435;  Story  on  Ag.,  sec.  126-130; 
Jarvis  v.  Rogers,  13  Mass.  105;  15  Id.  389;  Bowman  v.  Wood, 
Id.  534;  Garlick  v.  James,  12  Johns.  146  [7  Am.  Dec.  294]  ; 
Collins  V.  Martin,  1  Bos.  &  Pul.  648 ;  Peacock  v.  Rhodes, 
Doug.  633;  Seamer  v.  Bingham,  3  Atk.  56;  Miller  v.  Race,  1 
Burr.  452;  1  Bell's  Com.,  sec.  412,  4th  ed. ;  Matthews  v.  Poy- 
thress,  4  Ga.  287. 

It  is  not  necessary  to  pursue  this  subject  in  detail.  The 
pawnee  is  entitled  to  receive  the  money  due  on  his  collateral 
securities,  and  to  hold  it  against  his  pawner  and  all  the  world, 
until  he  is  paid.  When  a  pledge  is  made  for  the  benefit  of  the 
pledgee  and  a  third  person,  who  is  also  a  creditor,  and  the  fund 
raised  is  insufiicient  to  pay  both,  the  pledgee,  being  a  creditor 
in  possession,  is  entitled  to  preference.     According  to  the  idea 

86 


AMEEICAN  FIG  IRON,  ETC.  CO,  v.  GEEMAN.     §§  22,  23 

of  the  Roman  law,  "/m  pari  causa  possessor  potior  haheri  debet:" 
Marshall  v.  Byrant,  12  Mass.  321 ;  Story  on  Bail.,  sec.  313.  If 
this  is  true  as  to  other  creditors,  when  there  is  a  stipulation  in 
their  behalf,  a  fortiori,  it  is  true  as  to  creditors  generally,  as  to 
whom  there  is  no  stipulation.  The  rights  of  the  holder  of  nego- 
tiable instruments  as  collateral  securities,  in  them,  were  con- 
sidered by  this  court  in  the  case  of  Bond  v.  The  Central  Bank, 
2  Ga.  106,  and  in  Gibson  v,  Conner,  3  Id.  52,  53.  In  the  latter 
case  we  say:  "The  transferror  parts  with,  and  the  transferee 
acquires,  the  legal  title  to  the  negotiable  paper  thus  transferred 
— the  latter  may  sue  on  it  in  his  own  name,  and  although  the 
original  debt  is  not  extinguished,  the  creditor  has  the  right  to 
apply  the  proceeds  of  the  securities,  when  realized,  to  its  ex- 
tinction— nay,  he  is  boiuid  to  do  it,  and  whatever  he  does  realize 
on  them  is  a  payment  pro  tanto."  If  it  be  the  right  of  the 
pledgee  to  apply  money  collected  on  the  securities,  it  is  the  right 
of  the  pledgor  to  consider  money  thus  in  hand  as  a  payment. 
If  such  is  the  law  of  the  case,  he  (the  defendant)  is  entitled, 
the  case  being  made,  to  have  it  so  declared,  and  to  have  a  credit 
on  the  original  debt.  This  the  court  ought  to  do,  if  for  no 
other  reason  than  to  avoid  litigation.  As  before  stated,  the 
court  had  jurisdiction,  in  this  case,  of  this  subject-matter,  and 
we  think  it  erred  in  not  ruling  that  this  money  was  by  law  to 
be  appropriated  to  the  plaintiff's  debt,  and  as  a  consequence, 
that  the  defendant  was  entitled  to  a  credit  for  the  amount  of  it. 
Upon  these  grounds  we  remand  the  case. 


23,     AMERICAN  PIG  IRON  STORAGE  WARRANT  CO,  V. 

GERMAN, 

126  Ala.  194;  28  So.  B.  603;  85  Am.  St.  B.  21.     1899. 

Sharp,  J.  .  .  .  The  litigation  originated  under  circumstances 
substantially  as  follows :  The  Alabama  Iron  and  Steel  Company, 
a  domestic  corporation,  was  for  several  years  engaged  in  the 
manufacture  and  sale  of  charcoal  pig  iron.  The  appellant,  the 
American  Pig  Iron  Storage  Warrant  Company,  a  corporation 
having  its  principal  office  in  New  York  city,  did  a  warehouse 
business  which  consisted  mainly  in  the  storage  of  pig  iron. 
Its  yard.  No.  38,  was  located  near  the  furnace  of  the  Alabama 
Iron  and  Steel  Company  (which  we  will  refer  to  hereafter  as 
the  furnace  company),  near  Briarfield,  Alabama,  and  was  di- 
vided into  three  sections,  designated,  respectively,  as  "A,"  "B," 

87 


§  23  PIGNTJS,  OE  PLEDGE. 

and  "C."  Under  its  regulations  iron,  when  stored  in  it,  was 
placed  in  separate  piles,  each  containing  one  hundred  tons,  and 
marked  with  letters  to  identify  its  location,  and  with  figures  to 
designate  its  grade.  For  each  of  these  hundred  ton  lots  the 
local  yardmaster  gave  to  the  depositor  his  certificate,  and  upon 
that  certificate,  when  forwarded  to  the  New  York  office,  the 
storage  company  issued  to  whom  the  furnace  company  might 
direct  its  several  warrants  for  each  of  such  lots,  which  warrants 
described  the  iron  covered  by  it,  and  stipulated  that  "this  com- 
pany has  received  into  its  storage  yard,  located  as  above,  and 
entered  in  its  storage-books  in  New  York  in  the  name  and  subject 
to  the  order  of  (name  of  holder)  one  hundred  tons  of  2,240 
pounds  each  of  pig  iron  of  the  brand,  grade  and  weight  repre- 
sented by  this  warrant,  which  will  be  delivered  free  on  board 
cars  in  the  yard  above  named,  only  on  surrender  of  this  warrant 
at  the  New  York  office,  properly  endorsed  and  witnessed,  with 
payment  of  charges  as  noted  below."  The  storage  yard  system 
was  availed  of  by  the  furnace  company  for  the  purpose  of  bor- 
rowing money  on  the  security  of  its  unmarketed  iron,  the  war- 
rants for  which  could  be  conveniently  used  as  evidence  of  a 
pledge  of  iron  to  secure  its  notes.  In  some  instances  of  borrow- 
ing the  storage  company  and  its  yard  were  not  resorted  to,  and 
the  iron  was  delivered  elsewhere  in  pledge  to  the  lender  inde- 
pendently of  the  storage  company.  Besides  other  investors  who 
from  time  to  time  made  loans  to  the  furnace  company  upon  the 
security  of  storage  warrants  was  the  storage  company  itself.  In 
this  way  it  became  the  pledgee  of  its  own  warrants,  representing 
about  two  thousand  one  hundred  tons  of  iron  in  its  yard  38.  .  .  . 

Joseph  Verchot  brought  this  suit,  and  thereafter,  he  having 
died,  it  was  revived  in  the  name  of  his  executrix.  It  seeks  to 
enforce  a  pledge  of  seven  hundred  tons  of  iron  alleged  to  have 
been  made  to  him  by  the  furnace  company  as  security  for  money 
loaned  on  its  seven  notes  each  reciting  a  pledge  of  one  hundred 
tons  of  designated  iron,  and  further  reciting  that  "any  excess 
in  the  value  of  said  collaterals  or  surplus  from  the  sale  thereof 
beyond  the  amount  due  hereon  shall  be  applicable  upon  any 
other  note  or  claim  held  by  the  holder  hereof  against  us  now  due, 
or  to  become  due,  or  that  may  hereafter  be  contracted."  It 
is  alleged  in  substance  that  after  the  iron  was  so  delivered  in 
pledge  it  was,  under  the  direction  of  the  furnace  company's 
president,  wrongfully  removed  into  the  storage  warrant  yard, 
where  interests  in  it  were  claimed  by  other  parties  defendant. 

The  demurrer  to  the  bill  was  properly  overruled.  Verchot, 
not  having  possession  of  the  iron,  could  not  pursue  the  ordinary 


AMEEICAN  PIG  IRON,  ETC.  CO.  v.  GERMAN.  §  23 

way  of  enforcing  his  security  by  a  sale  of  the  iron,  and  his  sale, 
if  it  could  be  made,  would  be  embarrassed  by  the  conflicting 
claims  upon  it.  In  such  case  equity  has  jurisdiction  to  deter- 
mine the  rights  of  rival  claimants  and  to  enforce  the  pledge 
by  judicial  sale:  3  Pomeroy's  Equity  Jurisprudence,  sec.  1231; 
18  Am.  &  Eng.  Ency.  of  Law,  674;  Sharp  v.  National  Bank, 
87  Ala.  644,  7  South.  106;  Freeman  v.  Freeman,  17  N.  J. 
Eq.  44. 

There  was  nothing  in  the  pendency  of  other  creditors'  bills 
to  preclude  him  from  proceeding  by  original  bill  instead  of 
by  intervention  under  those  bills :  Alabama  Iron  etc.  Co.  v.  Mc- 
Keever,  112    Ala.  134,  20  South.  84. 

The  statutes  requiring  chattel  mortgages  to  be  in  writing  and 
authorizing  their  registration  have  no  application  to  a  pledge. 
A  pledge  differs  from  a  mortgage  in  that  the  pledgee  must  have 
possession  and  the  pledgor  the  legal  title  of  the  property,  while 
a  mortgage  passes  the  title  to  the  mortgagee  and  may  allow 
possession  to  remain  in  the  mortgagor:  Jones  on  Pledges,  sees. 
4,  7;  Geilfuss  v.  Corrigan,  95  Wis.  651,  60  Am.  St.  Rep.  143, 
70  N.  W.  306.  Notice  to  the  public  of  the  pledgee's  interest 
in  the  property  is  sufficiently  given  by  the  possession,  which 
must  reside  in  the  pledgee.  Such  possession,  however,  to  be 
effective  either  for  notice  or  to  give  validity  at  law  to  the 
pledge,  must  be  complete,  unequivocal,  and  exclusive  of  the 
pledgor's  possession  in  his  own  right:  Jones  on  Pledges,  sec. 
40;  Casey  v.  Cavaroc,  96  U.  S.  467;  First  Nat.  Bank  v.  Caper- 
ton,  74  Miss.  857,  60  Am.  St.  Rep.  540,  22  South.  60.  As 
bearing  on  the  question  what  constitutes  such  possession,  the 
reported  cases  are  numerous;  but  those  which  can  be  relied  on 
as  express  authority  are  few,  since  each  case  is  determined  upon 
its  peculiar  facts. 

In  this  case  it  is  clearly  proven  that  under  the  agreement  of 
pledge  between  the  furnace  company,  acting  by  its  president 
and  Verchot,  a  particular  spot  of  ground  belonging  to  that  com- 
pany and  located  apart  from  its  own  iron  yards  was  tendered 
by  the  president  and  accepted  by  Verchot  for  his  use,  and  that 
a  quantity  of  iron  was  placed  thereon,  piled  in  one  hundred  ton 
lots  and  marked  with  paint  with  Verchot 's  initials.  There  is 
nothing  to  show  that  any  power  was  reserved  or  allowed  to  the 
furnace  company  or  its  officers  or  employees  either  to  repledge, 
sell,  use,  or  have  charge  of  the  iron  after  it  was  so  placed. 

It  was  not  essential  for  the  delivery  to  be  made  at  the  time 
of  the  contract,  and  the  pledge  took  effect  upon  subsequent  de- 
livery made  in  performance  of  the  contract:    Nobles  v.  Chris- 

89 


§  23  PIGNUS,  OB  PLEDGE. 

tian-Craft  Grocery  Co.,  113  Ala.  220,  20  South.  961;  Denis  on 
Contracts  of  Pledge,  sec.  136.  Considering  the  character  of 
the  property  involved,  its  delivery  must  be  taken  as  vesting 
complete  possession  in  Verchot,  thereby  validating  the  pledge. 
The  cases  of  Allen  v.  Smith,  10  Mass.  308,  and  Sumner  v.  Ham- 
let, 12  Pick.  76,  may  be  referred  to  as  analogous  in  principle. 

it  is  proven  that  T.  J.  Peter,  president  of  the  furnace  com- 
pany, had  active  charge  of  its  affairs,  and  that  by  his  direction 
iron  was  taken  from  the  Verchot  yard  and  placed  in  the  storage 
company's  yard,  and  there  is  nothing  to  show  that  Verchot 
ever  authorized  or  ratified  such  removal  excepting  a  statement 
attributed  to  T.  J.  Peter,  which  is  hearsay  and  for  that  reason 
incompetent  as  evidence.  There  is,  however,  evidence  tending 
to  show  that,  contrary  to  the  storage  company's  printed  rules, 
its  yardmaster  had,  in  some  instances,  given  certificates  upon 
which  warrants  were  issued  to,  and  pledged  by,  the  furnace  com- 
pany representing  deposits  of  iron  in  the  storage  yard  before 
they  were  actually  made.  The  necessity  for  supplying  the 
shortage  thus  created,  for  which  E.  T.  Peter,  the  yardmaster, 
might  have  been  held  responsible  to  the  storage  company,  fur- 
nishes a  probable  motive  for  so  using  the  iron  in  controversy. 
It  may  be  that  Peter  expected  that  Verchot  would  ratify  such 
removal  upon  restitution  made  to  him  from  iron  to  be  manu- 
factured, but  there  is  no  proof  of  such  ratification.  On  the 
contrary,  there  is  evidence  tending  to  show  that  on  being  in- 
formed of  the  removal  he  objected  and  held  to  his  original  con- 
tract. 

As  to  the  quantity  of  iron  delivered  to  Verchot  on  the  yard 
assigned  to  him,  and  likewise  as  to  the  quantity  thence  removed 
into  the  storage  company's  yard,  the  evidence  is  not  clear. 
Those  matters  being  referred  to  the  register,  he  ascertained  that 
the  entire  seven  hundred  tons  were  so  delivered  and  removed. 
The  testimony  is  not  in  accord  as  to  the  quantity  removed, 
neither  does  it  accord  as  to  the  time  of  removal,  and  the  weigh- 
ing-books in  evidence  are  not  shown  to  have  been  accurately 
kept.  The  testimony  can  be  best  harmonized  upon  the  supposi- 
tion that  removals  in  different  quantities  occurred  at  different 
dates,  and  that  all  of  such  acts  of  removal  were  not  known  to 
each  witness.  So  viewed  the  evidence  supports  the  register's 
findings. 

The  demurrers  to  the  intervening  petitions  show  no  tenable 
grounds.  Such  petitions  are  not  required  to  conform  to  all 
the  technical  rules  applicable  to  pleading  as  between  the  prin- 
cipal parties.     When  filed  by  leave  of  court  other  parties  in 

90 


AMEEICAN  PIG  lEON,  ETC.  CO.  v.  GEKMAN.  §  23 

interest  are  entitled  to  notice  and  an  opportunity  to  defend, 
but  the  petition  need  not  name  tliem  as  defendants,  and  it  needs 
no  formal  prayer  for  process. 

Pfafif's  petition  presents  a  case  for  the  most  part  similar  to 
that  of  Verchot.  He  claims  as  the  holder  of  notes  containing 
agreements  for  pledges  of  iron  as  collateral  security  transferred 
to  him  by  C.  S.  Plumb,  who  is  alleged  to  have  made  loans  thereon 
to  the  furnace  company,  aggregating  five  thousand  dollars. 
There  is  evidence  amply  supporting  the  petition  and  showing 
that,  pursuant  to  the  contracts,  iron  was  set  apart  to  Mrs.  Plumb 
by  being  placed  upon  a  spot  of  ground  leased  to  her  by  the 
furnace  company  for  that  purpose,  and  was  there  marked  with 
initial  of  her  name.  There  is  no  evidence  of  any  right  reserved 
or  allowed  to  the  furnace  company,  or  anyone  cannected  with 
it,  to  thereafter  use  or  exercise  any  control  over  the  iron.  This 
delivery  vested  Mrs.  Plumb  with  possession,  and  in  that  respect 
fully  executed  the  pledge  contract. 

It  was  ascertained  by  the  register  upon  a  reference  that  three 
hundred  tons  of  iron  were  by  direction  of  the  furnace  company 's 
president  removed  from  the  Plumb  yard  into  the  storage  com- 
pany's yard  and  that  two  hundred  tons  of  same  remained  on 
that  yard,  the  warrants  describing  same  being  held  by  the  stor- 
age company,  and  that  a  warrant  describing  the  other  one  hun- 
dred tons  had  been  issued  to  an  innocent  holder  for  value,  and 
that  this  last-mentioned  one  hundred  tons  had  been  removed 
from  the  state,  but  that  there  had  been  another  one  hundred 
tons  substituted  and  held  in  lieu  of  it  in  the  storage  yard. 

Though  a  pledgee  does  not  acquire  the  legal  title  to  the 
pledged  property,  and  though  relinquishment  of  his  possession 
will  ordinarily  defeat  the  pledge,  yet  the  pledgor  cannot  accom- 
plish such  defeat  by  wrongfully  retaking  possession:  Way  v. 
Davidson,  12  Gray,  465,  74  Am.  Dec.  604;  Palmtag  v.  Dou- 
trick,  59  Cal.  154,  43  Am.  Rep.  245.  Verchot  and  Mrs.  Plumb, 
in  whose  place  Pfaff  now  stands,  being  without  fault,  might  have 
recovered  possession  from  the  furnace  company  when  the  iron 
was  taken  by  it  or  its  representatives  from  their  respective  yards ; 
and  the  same  right  of  action  lay  against  the  storage  company 
after  it  was  held  in  its  yard.  Neither  the  storage  company  nor 
its  warrant  holders,  either  with  or  without  notice  of  the  pledge, 
could  acquire  any  greater  interest  than  their  transferrer,  the 
furnace  company,  had,  which  was  only  to  have  the  property  after 
satisfaction  of  the  debts  it  was  pledged  to  secure:  Burton  v. 
Curyea,  40  111.  320,  89  Am.  Dec.  350;  Solomon  v.  Bushnell, 
11  Or.  277,  50  Am.  Rep.  475,  3  Pac.  677.     The  statute  (Code, 

91 


§§  23,  24  PIGNUS,  OE  PLEDGE. 

see.  4222)  regulating  the  issuance  of  warehouse  receipts  was 
not  intended  to  confer  rights  upon  their  hokiers  prejudicial  to 
one  whose  property  is  stored  Avithoiit  authority:  Commercial 
Bank  v.  Hurt,  99  Ala.  130,  42  Am.  St.  Rep.  38,  12  South.  568. 

(Omitting  other  matters.)     Judgment  affirmed  at  cost  of  ap- 
pellant storage  company. 


<  24.     GEILFUSS  V.  CORRIGAN, 
95  Wis.  651;  70  N.  W.  B.  306;  60  Am.  St.  R.  143.     1897. 

Action  to  recover  $178,908.00  for  pig  iron  taken  under  a  judg- 
ment in  favor  of  the  receiver  of  Corrigan,  Ives  &  Co.,  who  had 
furnished  the  furnace  company  the  iron  ore  from  which  the  pig 
iron  was  made.  Plaintiff  was  assignee  of  the  Commercial  Bank 
of  Milwaukee,  which  had  advanced  the  furnace  company  large 
sums  on  the  security  of  "storage  warrants."  Judgment  for 
plaintiff. 

WiNSLOW,  J.  The  so-called  storage  warrants  were  not  ware- 
house receipts,  either  under  the  laws  of  Pennsylvania  or  of  Wis- 
consin. In  order  to  be  such,  they  must  be  issued  by  a  warehouse- 
man or  one  openly  engaged  in  the  business  of  storing  property  for 
others  for  a  compensation:  1  Brightly 's  Purdon's  Digest,  12th 
ed.,  p.  165,  sec.  1;  Bucher  v.  Commonwealth,  103  Pa.  St.  528; 
Shepardson  v.  Cary,  29  Wis.  34.  And  the  fact  that  the  receipt 
was  executed  by  a  warehouseman  must  affirmatively  appear 
in  the  evidence:  Shepardson  v.  Cary,  29  Wis.  34.  Not  only 
was  there  no  proof  in  this  case  that  the  furnace  company  was 
in  the  warehousing  or  storage  business,  but,  on  the  contrary, 
the  proof  was  conclusive  that  it  was  not  in  such  business,  and 
never  had  been.  The  fact  that  it  surreptitiously  issued  the 
false  receipts  in  question  did  not  constitute  it  a  warehousing 
corporation.  As  well  might  it  be  argued  that  the  issuance  of 
counterfeit  bank  bills  constitutes  the  counterfeiter  a  bank.  It 
seems  that,  had  the  certificates  been  negotiable  warehouse  re- 
ceipts, the  bank  would  have  acquired  a  valid  lien  upon  the  iron 
they  represented  by  the  transfer  and  indorsement  of  the  receipts 
to  it  by  the  Buffalo  Mining  Company:  Price  v.  Wisconsin  etc. 
Ins.  Co.,  43  Wis.  267;  1  Brightly 's  Purdon's  Digest,  12th  ed., 
p.  165.  sec.  1.  But  we  may  dismiss  this  question,  because  they 
were  not  such  certificates,  and  the  plaintiff  obtains  no  advan- 
tage from  the  fact  that  they  were  in  the  usual  form  thereof. 
Nor  were  the  certificates  valid  as  chattel  mortgages  upon  the 

92 


GEILFUSS  V.  COKEIGAN.  §  24 

iron  named  in  tLem,  not  only  because  they  are  not  chattel  mort- 
gages in  legal  effect,  but  also  because  by  the  law  of  Pennsyl- 
vania, as  well  as  by  the  law  of  Wisconsin,  a  chattel  mortgage 
is  only  valid  as  to  third  persons  when  filed  in  the  proper  office, 
and  there  is  no  claim  of  any  filing  here:  1  Brightly 's  Purdon's 
Digest,  12th  ed.,  p.  665,  sees.  200-214. 

Thus,  at  the  outset  of  the  case,  it  appears  that  the  plaintiff 
had  no  interest  in  or  lien  upon  the  iron  in  question,  as  indorsee 
of  a  warehouse  receipt  nor  as  a  chattel  mortgagee.  Nor  can 
it  be  claimed  that  the  plaintiff  actually  bought  or  obtained  legal 
title  to  the  iron.  These  possible  claims  being  thus  eliminated, 
we  know  of  no  other  claim  which  the  plaintiff'  can  make,  unless 
it  be  a  claim  as  pledgee  of  the  iron  as  collateral  to  the  debts  of 
the  Buffalo  Mining  Company  and  of  Schlesinger;  and  this,  in 
fact,  is  the  claim  made  in  the  complaint,  and  the  only  claim 
which  the  evidence  tends  to  justify.  It  becomes  necessary, 
then,  to  consider  the  question  whether  the  evidence  shows  a 
valid  pledge.  The  principles  of  law  governing  a  pledge  of  per- 
sonal property  are  simple  and  familiar.  To  constitute  a  valid 
pledge  there  must  be  transfer  of  possession  to  the  pledgee,  act- 
ual or  constructive :  Seymour  v.  Colburn,  43  Wis.  67.  A  pledge 
dift'ers  from  a  mortgage  in  this  important  respect,  namely,  that 
the  legal  title  to  the  property  pledged  remains  in  the  pledgor, 
subject  to  the  pledgee's  lien  for  his  debt,  while  a  mortgage, 
passes  the  legal  title  to  the  mortgagee.  In  the  case  of  a  pledge, 
a  lien  is  created,  to  the  existence  of  which  possession  is  absolute- 
ly necessary;  in  the  case  of  a  mortgage,  title  passes,  subject  to 
be  revested  by  performance  of  a  condition  subsequent:  Jones 
on  Pledges,  sees.  4,  7;  Thompson  v.  Dolliver,  132  Mass.  103. 
Therefore,  if  the  bank  had  any  interest  in  the  iron  at  the  time 
of  its  seizure,  it  was  that  of  a  lien  thereon,  by  way  of  a  pledge. 

In  considering  the  question  of  whether  it  had  such  a  lien 
which  was  valid  as  against  the  creditors  of  the  furnace  company, 
a  brief  recapitulation  of  the  essential  facts  will  be  useful. 
Ferdinand  Schlesinger  o^\Tied  two  corporations,  one,  a  mining 
corporation,  engaged  in  mining  ore  in  Michigan;  the  other,  a 
furnace  company,  engaged  in  smelting  ore  in  Pennsylvania. 
These  corporations  were  nominally  furnished  with  full  comple- 
ments of  officers,  but  in  fact  the  business  of  each  was  directed 
and  controlled  by  Schlesinger  as  though  it  were  his  own.  The 
furnace  company  had  a  large  stock  of  pig  iron  constantly  on 
hand  in  its  yards  in  Pennsylvania,  and  was  largely  indebted  to 
Corrigan,  Ives  &  Co.,  of  whom  it  purchased  its  iron.  It  refused 
to  gi\e  Corrigan,  Ives  &  Co.  security  on  the  iron,  on  the  ground 

93 


§  24  PIGNUS,  OB  PLEDGE. 

that  such  a  course  would  injure  its  credit.  In  order  to  raise 
money  for  the  furnace  company,  Schlesinger  caused  the  furnace 
company  to  issue  apparent  storage  receipts  to  the  mining  com- 
pany, without  consideration,  and  without  agreement  to  purchase, 
and  without  selection  or  delivery  of  the  property,  either  actual 
or  constructive,  unless  the  handing  over  of  the  receipts  be 
delivery,  and  with  the  agreement'  that  the  receipts  should 
be  returned  whenever  the  furnace  company  needed  them  on 
account  of  sale  of  the  iron.  On  receiving  the  receipts,  he  bor- 
rowed money  of  the  plaintiff  bank  upon  the  notes  of  the  mining 
company,  secured  by  assignment  of  the  receipts  as  collateral. 
What  was  done  with  all  the  money  so  borrowed  does  not  ap- 
pear. The  original  purpose  seems  to  have  been,  as  said  in  re- 
spondent's brief,  to  raise  money  for  the  furnace  company,  and 
the  evidence  shows  the  fact  that  the  mining  company  was  almost 
daily  remitting  money  in  large  amounts  to  the  furnace  company, 
as  well  as  the  fact  that  the  furnace  company  was  frequently  re- 
mitting to  the  mining  company.  None  of  the  remittances  were 
made  in  payment  of  the  iron  certificates,  nor  were  they  ever 
intended  to  be  applied  thereon.  The  fact  seems  to  be  that  each 
enterprise  was  bolstering  up  the  other  as  occasion  required,  or, 
rather,  that  Mr.  Schlesinger  was  using  the  property  and  credit 
of  his  apparently  separate  concerns  indiscriminately,  to  obtain 
money  as  it  was  needed.  It  seems  probable  that  much  of  the 
money  borrowed  on  the  notes  of  the  mining  company  secured 
by  the  receipts  in  question  was  forwarded  to  the  furnace  com- 
pany. 

The  court  found  that  the  bank  took  the  certificates  innocently, 
without  knowledge  of  any  defect.  We  cannot  probably  dis- 
turb this  finding,  because  it  is  based  on  the  affirmative  evidence 
of  the  cashier  who  made  the  loans;  but,  in  view  of  the  facts 
proven  on  cross-examination  of  the  cashier  himself,  this  finding 
seems  to  be  a  considerable  tax  on  the  credulity.  The  facts  are, 
in  brief,  that  the  cashier  was  well  acquainted  with  Mr.  Schles- 
inger, so  much  so  that  in  1892  Schlesinger  put  in  his  hands 
one  share  of  stock  in  the  Buffalo  Mining  Company,  in  order 
that  he  might  become  a  director  of  the  company,  and  he  was 
thereupon  made  a  director  and  secretary  of  the  company,  and 
remained  such  until  April,  1893,  when  he  resigned,  and  re- 
turned his  share  of  stock.  This  was  after  the  loans  on  the 
credit  of  the  receipts  had  begun  to  be  made.  Notwithstand- 
ing his  high  official  position  in  the  mining  company,  he  testifies 
that  he  ''knew  nothing  of  its  business,"  except  that  it  was  en- 
gaged in  mining.    We  think  he  could  hardly  have  failed  to  dis- 

94 


GEILFUSS  V.  COEEIGAN.  §  24 

eover  the  manner  in  which  J\Ir.  Schlesinger  conducted  the  busi- 
ness of  his  nominal  corporations.  However  this  may  be,  he 
knew,  as  he  testifies,  that  the  mining  company  was  engaged  in 
mining  ore,  and  not  in  buying  or  selling  pig  iron.  He  knew 
"something"  about  the  furnace  company;  knew  where  it  was 
doing  business;  knew  Mr.  Hirschfeld,  the  nominal  president; 
discounted  some  of  the  furnace  company's  paper;  obtained  gen- 
eral information  about  it  by  inquiries  through  commercial  agen- 
cies at  the  time  of  the  pledging  of  the  receipts.  In  view  of  all  these 
facts  which  were  within  his  knowledge,  and  the  facts  which 
he  might  have  ascertained  without  difficulty  by  very  little  in- 
quiry, it  seems  almost  an  impeachment  of  his  intelligence  to 
say  that  he  received  the  receipts  in  ignorance  of  any  defect  or 
infirmity  in  them ;  but  we  suppose  we  are  bound  by  the  finding, 
and  we  shall  proceed  on  that  basis. 

It  is  very  apparent  that,  had  the  certificates  remained  in  the 
hands  of  the  mining  company,  they  would  have  constituted  no 
obstacle  to  creditors  of  the  furnace  company  in  the  collection 
of  their  debts.  They  were  subject  to  nearly,  if  not  quite,  all 
the  objections  which  render  transfers  void  as  to  creditors.  They 
were  absolutely  false  in  fact.  There  was  no  change  of  posses- 
sion of  the  iron ;  no  payment  nor  agreement  to  pay  for  it ;  no  in- 
tention to  pass  title.  They  were  the  merest  shams.  There 
was,  in  effect,  an  agreement  that  the  furnace  company  should 
remain  the  apparent  owner,  with  the  right  to  sell  and  receive 
and  dispose  of  the  proceeds  of  sales,  and  that  it  should  have 
the  right  to  call  back  certificates  whenever  it  needed  them  for 
this  purpose;  and  it  was  further  expected  that,  when  the  need 
for  borrowing  money  was  over,  the  certificates  should  all  be 
returned.  The  scheme  was  certainly  a  brilliant  one.  If  suc- 
cessful, it  created  a  shifting  title  or  interest,  which  readjusted 
itself  from  day  to  day  as  the  stock  changed,  automatically  at- 
taching to  each  new  pig  of  iron  as  it  emerged  glowing  from  the 
furnace,  and  with  equal  facility  detaching  itself  from  each  pig 
that  was  sold  as  it  was  loaded  on  the  car  for  transportation  to 
the  vendee.  Certainly,  if  such  a  scheme  could  be  successful, 
the  inventor  should  take  high  rank  among  a  certain  class  of 
financiers;  and  the  laws  which  have  been  supposed  to  prevent 
secret  transfers  and  conveyances  in  fraud  of  creditors  must  be 
at  once  revised,  or  they  will  pass  into  the  dim  limbo  of  unexe- 
cuted and  worn-out  legislation. 

It  is  seriously  and  ably  argued  that  the  scheme  has  been  suc- 
cessful; that  the  original  transaction  has  been  purged  of  all  ob- 
jections by  the  intervention  of  the  innocent  third  person,  in  the 

95 


§  24  PIGNTJS,  OE  PLEDGE. 

.shape  of  the  plaintiff  bank;  and  thus  that  the  shifting  and  self- 
adjusting,  but  void,  title  of  the  mining  company  has  been  turnel 
into  an  equally  shifting  and  delusive,  but  good,  lien  for  the  bene- 
fit of  the  bank— a  lien  which  is  secret  and  invisible  to  creditors, 
but  entirely  visible  and  very  real  to  the  plaintiff.     As  before 
said  in  this  opinion,  the  only  interest  which  the  plaintiff  claims 
or  can  claim  in  the  iron  in  question  is  that  of  a  lien  thereon  as 
pledgee ;  and,  in  order  to  make  a  valid  pledge,  there  must  have 
been   either   actual   or   constructive   delivery   of   the   property 
pledged.    Bona  fides  does  not  avail  the  pledgee  in  the  absence  of 
delivery  and  possession,  either  actual  or  constructive.    There  was 
confessedly  no  actual  delivery  here,  and  the  only  thing  that  can 
be  claimed  to  be  a  symbolical  or  constructive  delivery  is  the  in- 
dorsement and  delivery  of  the  false  receipts.     Hence,  the  ques- 
tion becomes  whether  the  delivery  of  the  receipts  under  the 
circumstances  is  a  constructive  delivery  of  so  much  iron.     Had 
they  been  in  fact  warehouse  receipts,  the  transfer  and  indorse- 
ment thereof  by  way  of  pledge  would  have  operated  as  a  suffi- 
cient constructive  delivery  of  the  property,  both  by  the  common 
law  and  by  the  statute:  Rev.  Stats.,  sec.  4194;  Shepardson  v. 
Gary,  29  Wis.  34 ;  Price  v.  Wisconsin  etc.  Ins.  Co.,  43  Wis.  267. 
Bills  of  lading  and  railroad  receipts  are  placed  by  the  statutes 
of  both  states  on  the  same  footing :  See  statutes  of  Pennsylvania 
before  cited  in  this  opinion.     The  reasons  for  this  rule  are  very 
apparent.     In  such  cases,  the  property  itself  is  in  the  hands  of 
a  third  person  or  corporation,  instead  of  in  the  possession  of  the 
vendor  or  pledgor.    Consequently,  it  does  not  furnish  any  false 
basis  of  credit,  nor  is  any  creditor  deceived,  because  it  is  well 
understood    that    ^ods    in    the    hands    of    warehousemen   ijr 
carriers  are  or  may  be  the  property  of  others,  and,  by  the  long 
usage  of  trade,  subject  to  just  this  mode  of  _transfer.    No  such 
considerations,  however,  apply  in  the  case  of  goods  in  the  posses- 
sion of  the  vendor  or  pledgor,  or  of  some  third  person  who  is  not 
a  warehouseman  or  wharfinger,  and  we  know  of  no  rule  which 
makes  the  mere  delivery  of  a  receipt  a  constructive  delivery  of 
the  property  in  pledge  in  such  a  case.    In  Shepardson  v.  Cary, 
29  Wis.  34  (which  was  an  action  in  equity  to  enforce  a  pledge 
of  personal  property  as  collateral,  alleged  to  have  been  made  by 
means  of  the  transfer  of  a  warehouse  receipt),  Dixon,  C.  J.,  says : 
"To  uphold  the  receipt  as  a  proper  warehouse  document  trans- 
ferring the  title  to  the  property,  and  operating  as  a  good  con- 
structive delivery  of  it  to  the  vendee,  it  must  in  all  cases  dis- 
tinctly appear  that  it  was  executed  by  a  warehouseman,  one 
openly  engaged  in  that  business,  and  in  the  usual  course  of 

96 


GEILFUSS  T.  CORRIGAN.  §  24 

trade."  There  are  numerous  examples  of  constructive  delivery 
in  the  books,  but  none,  we  think,  which  holds  that  the  facts 
here  constitute  such  delivery.  Constructive  or  symbolical  deliv- 
ery is  permitted  because  of  the  difficulty  or  impossibility,  in  some 
cases,  of  actual  delivery.  Thus,  where  the  goods  are  very  bulky, 
as  logs  in  a  boom,  delivery  may  be  made  by  pointing  them 
out  to  the  pledgee;  or,  where  they  are  goods  in  a  warehouse, 
by  a  delivery  of  the  keys;  or,  where  a  savings  bank  deposit 
is  to  be  pledged,  it  may  be  done  by  delivery  of  the  pass-book; 
Jewett  V.  Warren,  12  J\lass.  300;  7  Am.  Dec.  74;  Jones  on 
Pledges,  sees.  36,  37 ;  Boynton  v.  Payrow,  67  Me.  587.  So,  also, 
where  goods  are  in  possession  of  a  third  person,  and  the  pledgor 
gives  an  order  on  the  custodian  to  hold  the  goods  for  the  pledgee, 
which  is  brought  to  the  knowledge  of  the  custodian,  it  seems  that 
this  would  be  a  sufficient  delivery  and  change  of  possession : 
"Whitaker  v.  Sumner,  20  Pick.  399 ;  Tuxworth  v.  Moore,  9  Pick. 
347;  20  Am.  Dec.  479.  In  all  these  cases  it  will  be  readily  seen 
that  the  property  is  placed  bej'ond  the  control  of  the  pledgor, 
and  is  not  being  used  to  maintain  an  appearance  of  wealth  by 
either  the  pledgor  or  others  with  the  consent  of  the  pledgee. 

In  the  present  case  there  is  no  such  element.  The  pledgee 
never  saw  or  attempted  to  see  the  iron  described  in  the  certifi- 
cates, and  made  no  inquiries  concerning  it.  It  never  notified 
the  furnace  company  that  it  held  any  certificates  in  pledge,  or 
claimed  any  interest  in  any  iron  in  its  possession.  It  tacitly 
allowed  the  furnace  company  to  go  on  in  its  business  for  months, 
selling  out  the  very  iron  nominally  covered  by  the  certificates, 
and  replacing  it  with  other  iron,  and  collecting  and  using  the 
proceeds  of  its  sales.  There  can  be  no  constructive  or  symbolical 
delivery  and  continuance  of  possession  logically  claimed  where 
such  a  state  of  facts  appears.  Conceding  that  the  title  to  the 
iron  was  in  the  mining  company,  the  furnace  company  was  the 
custodian,  and  the  custodian  received  no  notice  of  pledge,  made 
no  agreement  to  hold  for  the  benefit  of  the  pledgee,  but  went 
on  in  business,  selling  the  property,  and  substituting  other  prop- 
erty in  its  place,  with  no  one  to  hinder  or  make  it  afraid.  Ap- 
parently the  owner  of  more  than  twenty  thousand  tons  of  iron, 
it  was  (if  plaintiff's  theory  is  correct)  really  not  the  owner  of 
it  in  case  a  creditor  appeared  with  an  execution.  It  was  held 
in  Casey  v.  Cavaroc,  96  U.  S.  467,  that  where  property  alleged 
to  have  been  pledged  has  at  all  times  been  in  the  actual  possession 
of  the  pledgor,  with  authority  to  dispose  of  it  and  substitute 
another  article  of  equal  value  in  its  place,  there  exists  no  pledge 
as  against  third  persons.  No  reason  is  perceived  why  this  is  not 
■^  97 


§  §  24,  25  PIGNUS,  OE  PLEDGE. 

wholesome  doctrine,  nor  why  it  does  not  apply  with  equal  force 
to  possession  by  a  third  person,  with  power  of  sale  and  substi- 
tution, as  in  the  present  case.  Our  conclusion  is,  that  as  against 
third  persons,  the  bank  never  perfected  its  pledge  by  obtaining 
possession,  either  actual  or  constructive,  of  the  iron  named  in 
the  certificates,  and  hence  that  it  cannot  maintain  this  action. 

.     .     .     By  the  Court.     Judgment  reversed,  and  action  re- 
manded with  directions  to  dismiss  the  plaintiff's  complaint. 


y^25.    WILSON  V:  LITTLE, 

2  N.  Y.  (2  Comstock)  443;  51  Am.  D.  307.     1849. 

Trover  for  the  conversion  of  railroad  stock.  Judgment  for 
plaintiff. 

By  Court,  Ruggles,  J.  This  was  an  action  for  wrongfully 
selling  fifty  shares  of  Erie  railroad  stock,  which  the  defendants, 
Little  &  Co,  had  received  in  security  for  a  loan  of  two  thousand 
dollars  made  by  them  to  Wilson,  through  the  agency  of  R.  L. 
Cutting,  a  broker.    The  contract  in  writing  was  in  these  words: 

"$2,000.  New  York,  Dec.  20,  1845. 

' '  I  promise  to  pay  Jacob  Little  or  order  two  thousand  dollars, 
for  value  received,  with  interest  at  the  rate  of  seven  per  cent. 
p(;r  annum,  having  deposited  with  tliem  as  collateral  security, 
with  authority  to  sell  the  same  at  the  broker's  board,  or  at  pub- 
lic auction,  or  at  private  sale,  at  option,  on  the  non-per- 
formance of  this  promise,  without  notice  on  fifty  Erie. 

"R.  L.  Cutting.'' 

The  stock  in  fact  belonged  to  the  plaintiff  Wilson,  but  stood 
in  Cutting's  name  on  the  books  of  the  New  York  &  Erie  Rail- 
road Company.  It  was  of  that  kind  known  as  consolidated 
capital  stock.  Cutting  negotiated  the  loan  as  the  plaintiff's 
broker.  On  the  same  day  Cutting  made  a  transfer  of  the 
stock  on  the  books  of  the  company  in  the  words  following: 

"N.  Y.  &  Erie  Co. 

"For  value  received,  I  hereby  transfer  unto  Jacob  Little  & 
Co.  all  my  right,  title,  and  interest  in  fifty  shares  of  the  consol- 
idated capital  stock  of  the  New  York  &  Erie  Railroad  Company. 

"New  York,  Dec.  20,  1845.  R.  L.  Cutting.'' 

98 


WILSON  V.  LITTLE.  §  25 

It  is  contended,  on  the  part  of  the  defendants,  that  the  trans- 
action was  a  mortgage,  and  not  a  pledge;  that  the  money  was 
payable  immediately,  and  the  stock  became  absolutely  the  prop- 
erty of  the  appellants,  and  was  only  redeemable  in  equity.  If 
this  be  true,  the  supreme  court  and  the  court  for  the  correction 
of  errors  must  have  rendered  their  judgments  in  the  case  of  Al- 
len V.  Dykers,  3  Hill  (N.  Y.),  593,  and  Dykers  v.  Allen,  7  Id. 
498  [42  Am.  Dec.  87],  upon  a  mistaken  view  of  the  law.  In  that 
case,  as  in  the  present,  there  was  a  loan  of  money,  a  promissory 
note  for  the  payment  of  the  amount,  in  which  it  was  stated  that 
the  borrower  had  deposited  with  the  lenders,  as  collateral  se- 
curity, with  authority  to  sell  the  same  on  the  non-performance 
of  the  promise,  two  hundred  and  fifty  shares  of  the  stock  therein 
mentioned.  The  money  in  that  case  was  payable  in  sixty  days 
— the  sale  was  to  be  made  at  the  board  of  brokers,  and  notice 
waived  if  not  paid  at  maturity.  The  stock  was  assigned  to  the 
lenders  of  the  money,  and  the  transfer  entered  on  the  books  of 
the  company,  on  the  day  the  note  was  given.  With  respect  to  the 
ques^tion  whether  the  stock  was  mortgaged  or  pledged,  I  can  per- 
cei^'o  no  difference  between  that  case  and  the  present.  The  ques- 
tion does  not  appear,  by  the  report  of  that  case,  to  have  been 
raised.  It  would  have  been  a  decisive  point,  for  if  it  had  been 
a  mortgage  and  not  a  pledge,  the  plaintiff  must  have  failed. 
The  sale  of  the  stock  in  that  case,  by  the  lender,  before  the  ma- 
turity of  the  note,  did  not  make  it  the  less  decisive :  See  Brown 
V.  Bement,  8  Johns.  98.  If  there  had  been  good  ground  for  say- 
ing, in  Allen  v.  Dykers,  that  the  stock  was  mortgaged  and  not 
pledged,  it  is  not  to  be  believed  that  it  would  have  escaped  the 
attention  of  the  eminent  counsel  who  argued  the  cause,  and  of 
both  the  courts;  and  on  examining  the  question,  I  am  satisfied 
that  if  the  point  had  been  taken  it  would  have  been  overruled. 

The  argument  of  the  defendant  in  this  case  is  founded  on  the 
assumption  that  when  personal  things  are  pledged  for  the  pay- 
ment of  a  debt,  the  general  property  and  the  legal  title  always 
remain  in  the  pledgor;  and  that  in  all  cases  where  the  legal 
title  is  transferred  to  the  creditor,  the  transaction  is  a  mortgage 
and  not  a  pledge.  This,  however,  is  not  invariably  true.  But 
it  is  true  that  possession  must  uniformly  accompany  a  pledge. 
The  right  of  the  pledgee  can  not  otherwise  be  consummated. 
And  on  this  ground  it  has  been  doubted  whether  incorporeal 
things  like  debts,  money  in  stocks,  etc.,  which  can  not  be  manu- 
ally delivered,  were  the  proper  subjects  of  a  pledge.  It  is  now 
held  that  they  are  so ;  and  there  seems  to  be  no  reason  why  any 
legal  or  equitable  interest  whatever  in  personal  property  may 

99 


§  25  PIGNTJS,  OE  PLEDGE. 

not  be  pledged ;  provided  the  interest  can  be  put,  by  actual  de- 
livery or  by  written  transfer,  into  the  hands  or  within  the  power 
of  the  pledgee,  so  as  to  be  made  available  to  him  for  the  satis- 
faction of  the  debt.  Goods  at  sea  may  be  passed  in  pledge  by  a 
transfer  of  the  muniments  of  title,  as  by  a  written  assignment 
of  the  bill  of  lading.  This  is  equivalent  to  actual  possession, 
because  it  is  a  delivery  of  the  means  of  obtaining  possession. 
And  debts  and  choses  in  action  are  capable,  by  means  of  a  writ- 
ten assignment,  of  being  conveyed  in  pledge:  Story  on  Bail., 
sees.  290,  297.  The  capital  stock  of  a  corporate  company  is  not 
capable  of  manual  delivery.  The  scrip  of  certificate  may  be 
delivered,  but  that  of  itself  does  not  carry  with  it  the  stockhold- 
er's interest  in  the  corporate  funds.  Nor  does  it  necessarily 
put  that  interest  under  the  control  of  the  pledgee.  The  mode 
in  which  the  capital  stock  of  a  corporation  is  transferred  usu- 
ally depends  on  its  by-laws :  1  R.  S.  600,  sec.  1.  It  is  so  in  the 
case  of  the  New  York  &  Erie  Railroad  Company:  Laws  of  1832, 
c.  224,  sec.  18.  The  case  does  not  show  what  the  by-laws  of  that 
corporation  were.  It  may  be  that  nothing  short  of  the  trans- 
fer of  the  title  on  the  books  of  the  company  would  have  been 
sufficient  to  give  the  defendants  the  absolute  possession  of  the 
stock,  and  to  secure  them  against  a  transfer  to  some  other  per- 
son. In  such  case  the  transfer  of  the  legal  title  being  necessary 
to  the  change  of  possession,  is  entirely  consistent  with  the  pledge 
of  the  goods.  Indeed,  it  is  in  no  case  inconsistent  with  it,  if 
it  appears  by  the  terms  of  the  contract  that  the  debtor  has  a  legal 
right  to  the  restoration  of  the  pledge  on  payment  of  the  debt 
at  any  time,  although  after  it  falls  due,  and  before  the  creditor 
has  exercised  the  power  of  sale.  Reeves  v.  Capper,  5  Bing. 
N.  C.  136,  was  a  case  in  which  the  debtor  ''made  over"  to  the 
creditor  "as  his  property"  a  chronometer,  until  a  debt  of  fifty 
pounds  should  be  repaid.    It  was  held  to  be  a  valid  pledge. 

In  the  present  case  the  note  for  the  repayment  of  the  loan 
and  the  transfer  of  the  stock  were  parts  of  the  same  transac- 
tion, and  are  to  be  construed  together.  The  transfer,  if  re- 
garded by  itself,  is  absolute,  but  its  object  and  character  is 
qualified  and  explained  by  the  contemporaneous  paper  which  de- 
clares it  to  be  a  deposit  of  the  stock  as  collateral  security  for  the 
payment  of  two  thousand  dollars,  and  there  is  nothing  in  the 
instrument  to  work  a  forfeiture  of  the  right  to  redeem  or  other- 
wise to  defeat  it,  except  by  a  lawful  sale  under  the  power  ex- 
pressed in  the  paper. 

The  general  property  which  the  pledgor  is  said  usually  to  re- 
tain, is  nothing  more  than  a  legal  right  to  the  restoration  of  the 

100 


WILSOX  V.  LITTLE.  §  25 

tiling  pledged  on  payment  of  the  debt.  Upon  a  fair  construc- 
tion of  the  note  and  the  transfer  taken  together,  this  right  was 
in  the  plaintiff,  unless  it  was  defeated  by  the  sale  which  the  de- 
fendant made  of  the  stock. 

In  every  contract  of  pledge  there  is  a  right  of  redemption  on 
the  part  of  the  debtor.  But  in  this  case  that  right  was  illusory 
and  of  no  value,  if  the  creditor  could  instantly,  without  de- 
mand of  payment  and  without  notice,  sell  the  thing  pledged. 
We  are  not  required  to  give  the  transaction  so  unreasonable  a 
construction.  The  borrower  agreed  that  the  lender  might  sell 
without  notice,  but  not  that  he  might  sell  without  demand  of 
payment,  which  is  a  different  thing.  The  lender  might  have 
brought  his  action  immediately,  for  the  bringing  an  action  is 
one  way  of  demanding  payment;  but  selling  without  notice  is 
not  a  demand  of  payment,  and  it  is  well  settled  that  whsre^o 
jtime  is  expressly  fixed  by  contract  between  the  parties  for  the 
payment  of  a  debt  secured  by  a  pledge,  the  pawnee  can  not  sell 
the  pledge  without  a  previous  demand  of  payment,  although  the 
debt  is  technically  due,  immediately:  Story  on  Bail.,  see.  308; 
Stearns  v.  Marsh,  4  Denio,  227  [47  Am.  Dec.  248]. 

Payment  of  the  note  in  this  case  was  not  demanded  until  the 
third  of  January,  1846.  Previous  to  that  time,  and  about  the 
twenty-fourth  of  December,  1845,  the  defendants  had  sold  the 
whole  or  the  greater  part  of  the  fifty  shares  of  consolidated 
stock  pledged  to  them  by  the  plaintiff,  and  were  therefore  not 
in  condition  to  fulfill  the  contract  on  their  part  by  restoring  the 
pledge.  Nor  were  they  able  nor  did  they  otter  to  restore  the 
same  kind  of  stock,  or  stock  of  the  same  value  as  that  which 
had  been  pledged  in  behalf  of  the  plaintiff.  On  the  third  of 
January,  when  the  defendants  offered  to  deliver  the  converted 
stock,  which  was  of  a  different  kind  and  value,  the  plaintiff's 
broker  was  willing  to  receive  any  stock  of  the  same  description 
as  that  which  had  been  pledged ;  but  no  stock  of  that  kind  was 
offered  by  the  defendants.  There  was  at  that  time  a  material 
difference  in  the  market  price  between  the  consolidated  and  the 
converted  stock  of  the  company,  the  former  selling  at  eighty-five 
dollars,  and  the  latter  at  fifty-five  dollars,  per  share.  The  pledge 
of  the  fifty  shares  of  consolidated  stock,  therefore,  could  not  be 
restored  or  made  good  to  the  plaintiff  by  assigning  to  him  the 
same  number  of  shares  of  converted  stock.  The  defendants 
were  bound  to  restore  the  identical  stock  pledged.  The  sale  of 
it  by  the  defendants  before  payment  demanded  was  therefore 
wrongful,  and  the  evidence  sustains  the  third  count  in  the 
plaintiff's  declaration.     The  defendants  having  voluntarily  put 

101 


§  25  PIGNUS,  OE  PLEDGE. 

it  out  of  their  power  to  restore  the  pledge,  a  tender  of  the 
money  borrowed  would  have  been  fruitless,  and  was  therefore 
unnecessary:  Allen  v.  Dykers,  3  Hill  (N.  Y.),  596;  Dykers  v. 
Allen,  7  Id.  498  [42  Am.  Dec.  87] . 

The  remaining  question  is  as  to  the  rule  of  damages.  The 
stock  was  disposed  of  by  the  defendants  as  early  as  the  twenty- 
fourth  of  December,  when  its  market  price  was  about  sixty- 
eight  dollars  the  share.  The  defendant  did  not,  however,  dis- 
tinctly inform  the  plaintiff  then  or  afterwards  that  he  had 
sold  it,  although  he  said  he  "had  not  got  it,"  and  gave  that 
as  a  reason  why  he  did  not  then  transfer  it,  promising  at  the 
same  time,  that  he  would  make  the  transfer  as  soon  as  the  stock 
came  in.  The  plaintiff,  to  accommodate  the  defendant,  agreed 
to  wait  until  the  following  day,  when  the  transfer  was  not  made, 
the  defendant  again  promising  to  make  it  shortly.  The  plaint- 
iff's broker  reminded  the  defendant  of  the  stock  frequently,  and 
on  the  thirtieth  of  December,  formally  notified  him  that  he 
wanted  to  pay  the  loan  and  get  back  the  stock,  insisting  that 
there  should  be  no  more  delay,  and  that  if  it  was  not  returned, 
he  was  directed  by  the  party  for  whom  he  was  acting  to  buy 
fifty  shares  at  the  board  and  charge  it  to  the  defendants.  The 
defendant  then  said  the  stock  should  be  returned  the  next  day, 
but  failed  to  return  it ;  and  it  was  not  until  the  second  of  Janu- 
ary that  the  defendant  ceased  to  hold  out  the  expectation  of 
restoring  the  stock,  or  stock  of  the  same  kind  and  of  equivalent 
value.  On  that  day  and  on  the  third  of  January,  the  con- 
solidated stock  sold  at  eighty-five  dollars  the  share. 

The  defendants  insist  that  they  are  chargeable  only  with  the 
value  of  the  pledge  at  the  time  it  was  wrongfully  converted  by 
them  to  their  own  use  on  or  before  the  twenty-fourth  of  Decem- 
ber, and  not  with  its  increased  value  at  any  subsequent  period. 
The  court  below,  in  making  up  the  verdict,  estimated  the  stock 
at  eighty-four  dollars  the  share.  In  actions  for  the  wrongful 
conversion  of  personal  property,  it  has  in  some  cases  been  held 
that  the  value  of  the  property  is  to  be  estimated  according  to 
its  price  at  the  time  of  the  conversion,  and  in  others  that  the 
plaintiff  is  entitled  to  damages  according  to  its  value  at  any 
time  between  the  time  of  the  conversion  and  the  day  of  the  trial : 
Bank  of  Buffalo  v.  Kortright,  22  Wend.  348,  366.  It  is  un- 
necessary in  this  case  to  settle  the  general  rule.  The  ground 
on  which  the  defendants  insist  that  the  damages  nuist  be  esti- 
mated according  to  the  price  of  the  stock  on  the  twenty-fourth 
of  December,  is  that  the  plaintiff,  on  learning  that  the  defend- 
ants had  sold  it,  might  then  have  gone  into  the  market  and  pur- 

102 


MASONIC  SAVINGS  BANK  v.  BANGS 'S  ADM.    §§  25,  26 

chased  it  at  the  current  price  on  that  day.  But  it  is  evident  that 
he  was  prevented  from  doing  so  by  the  repeated  promises  of  the 
defendants  to  restore  the  stock.  Although  the  plaintiff  was 
strictly  entitled  to  a  retransfer  of  the  same  shares  that  were 
pledged,  it  appears  that  his  broker  was  willing  to  receive  other 
stock  of  the  same  description  and  value,  which  the  defendant 
promised  from  day  to  day  to  give,  the  plaintiff  being  all  the 
time  ready  to  pay  the  money  borrowed.  Time  having  thus  been 
given  to  the  defendants  at  their  request  for  the  fulfillment  of 
their  obligation,  and  the  plaintiff  having  waited  for  the  deliv- 
ery of  the  stock  for  the  accommodation  of  the  defendants,  and 
having  relied  on  the  expectation  thus  held  out,  and  lost  the 
opportunity  of  purchasing  at  a  reduced  price,  it  is  manifestly 
just  that  the  plaintiff  should  recover  according  to  the  value  of 
the  thing  pledged  when  the  defendant  finally  failed  in  his  prom- 
ises to  restore  it. 

Judgment  affirmed.  . 


26.     MASONIC  SAVINGS  BANK  V.  BANGS 'S  ADMINIS- 
TRATOR, 

84  Ky.  135;  4  Am.  St.  R.  197.     1886. 

Petition  by  administrator  of  estate  of  intestate,  who  died  in- 
solvent. 

Pryor,  J.  John  B.  Bangs,  in  the  month  of  June,  1884,  bor- 
rowed of  the  Masonic  Savings  Bank  the  sum  of  ten  thousand 
dollars,  for  which  he  executed  his  note  payable  in  six  months, 
with  interest  from  date,  and  to  secure  its  payment  he  pledged 
as  collateral  security  three  hundred  shares  of  the  stock  of  the 
New  Gait  House  Company.  The  nature  of  the  pledge  was 
indorsed  on  the  back  of  the  note,  and  is  as  follows:  ''As  se- 
curity for  the  payment  of  the  within  note,  I  have  deposited 
with  the  Masonic  Savings  Bank  three  hundred  shares  of  the 
capital  stock  of  the  New  Gait  House  Company,  and  authorize 
the  said  bank  to  sell  the  above-described  collaterals,  and  pass 
a  good  title  thereto  to  the  purchaser,  if  the  within  note  is  not 
paid  at  maturity,  reserving  the  right  to  be  notified  in  writing 
twenty  days  previous  to  the  date  and  place  of  the  contemplated 
sale." 

Bangs,  the  obligor  in  the  note,  died  intestate  in  August, 
1884,  and  the  appellee,  W.  C.  Kendrick,   administered  on  his 

103 


§  26  PIGNUS,  OE  PLEDGE. 

estate,  and  in  order  to  a  settlement  with  creditors,  filed  a  peti- 
tion in  the  Louisville  chancery  court,  to  which  the  appellant 
(Masonic  Savings  Bank)  was  made  a  defendant.  The  estate 
of  Bangs  was  not  only  involved,  but  utterly  insolvent. 

The  Masonic  Savings  Bank,  being  a  large  creditor  of  the  es- 
tate, filed  an  answer  and  counterclaim,  setting  forth  its  vari- 
ous demands,  and  among  them  the  note  for  ten  thousand  dollars. 
A  judgment  was  asked  by  the  bank  for  the  sale  of  the  stock 
pledged  to  secure  the  payment  of  that  note.  The  administrator 
and  the  bank  consented  by  an  agreed  order  that  the  bank  should 
sell  the  stock,  subject  to  the  rights  of  the  parties  in  interest. 

The  stock  was  sold  by  the  bank,  and  realized,  after  the  pay- 
ment of  all  costs,  the  sum  of  $13,495.10.  This  sum  satisfied  the 
note,  and  left  a  surplus  of  $3,536.45,  and  the  manner  in  which 
this  surplus  is  to  be  distributed  is  the  question  presented  on  the 
appeal. 

The  bank,  holding  many  other  large  claims  against  the  es- 
tate, asserts  its  right  to  apply  this  surplus  to  their  payment, 
insisting  that  by  the  law  merchant  it  has  a  lien  over  other 
creditors,  and  if  not,  having  possession  of  the  fund,  its  right  to 
a  set-off  against  the  claim  of  the  administrator  can  not  be  de- 
nied. 

We  find  no  decision  by  this  court  determining  the  question 
involved;  but  the  right  of  a  bank  to  a  general  lien  on  the 
money  and  funds  of  the  depositor  in  its  vaults  for  the  pay- 
ment of  the  balance  of  the  general  account  of  the  depositor  is 
recognized  by  all  the  elementary  books  on  the  subject  of  banks 
and  banking,  and  sustained  by  an  unbroken  line  of  American 
decisions.  So  M'hen  the  depositor  is  indebted  to  the  bank,  his 
funds  in  the  bank  may  be  applied  to  the  payment  of  the  debt 
at  its  maturity,  and  a  failure  of  the  bank  to  make  such  an  appli- 
cation has  been  held  to  discharge  the  indorser  or  sureties. 

The  right  to  a  set-off  would  also  exist  against  the  adminis- 
trator or  representative  of  the  depositor  attempting  to  recover 
the  deposit  after  his  death:  Morse  on  Banking,  34-36. 

This  doctrine  as  to  the  general  lien  of  a  bank,  or  its  right 
to  a  set-off,  does  not  control  the  question  involved  in  this  case. 

It  is  equally  as  well  settled  that  when  the  deposit  is  made 
for  a  special  purpose,  with  the  knowledge  and  undertaking  of 
the  bank,  that  purpose  must  be  carried  out ;  or  when  the  pledge 
is  specific  to  secure  a  particular  debt,  the  lien  only  applies 
to  the  debt  intended  to  be  secured  by  it.  "A  security  given  for 
a  contemporaneous  advance  of  one  thousand  pounds  by  the 
banker  was  held  not  te  be  applicable  against  an  indebtedness 

104 


MASONIC  SAVINGS  BANK  v.  BANGS 'S  ADM.  §  26 

of  five  hundred  pounds  afterwards  arising  on  the  ordinary  run- 
ning account":  Morse  on  Banking,  36. 

In  this  case  the  intestate  deposited  with  the  bank  three 
hundred  shares  of  the  New  Gait  House  stock  to  secure  the 
payment  of  the  note  for  ten  thousand  dollars.  The  title  to  the 
stock  was  in  the  intestate,  subject  to  this  pledge,  and  the  bank 
had  no  right  to  sell  more  of  the  stock  than  would  satisfy  the 
debt  it  was  given  to  secure.  If  two  hundred  shares  had  satisfied 
the  debt,  the  intestate,  if  living,  could  have  maintained  an  ac- 
tion against  the  bank  for  the  remaining  one  hundred  shares. 
The  debt  having  been  paid,  the  pledgor  or  owner  would  have 
been  entitled  to  the  immediate  possession  of  the  stock  remaining 
unsold. 

The  administrator  of  Bangs  consented  that  the  whole  of  this 
stock  might  be  sold  by  the  bank,  and  when  sold,  the  special 
pledge  having  been  satisfied,  the  surplus  fund  arising  from  the 
sale  passed  to  the  administrator.  It  was  the  property  of  the 
estate,  and  its  conversion  into  money  did  not  alter  the  rights  of 
the  parties.  If  the  appellee,  as  the  administrator,  had  paid  off 
the  ten-thousand  dollar  note,  the  whole  of  the  stock  would  have 
belonged  to  the  estate,  and  no  lien  could  have  been  asserted 
against  the  administrator  so  as  to  have  prevented  a  distribution 
among  the  general  creditors. 

The  special  agreement  with  reference  to  the  particular  debt 
repels  the  inference  that  it  was  pledged  for  any  and  all  debts 
that  might  thereafter  be  owing  the  bank  by  the  intestate.  In 
3  Parsons  on  Contracts,  264,  265,  the  lien  of  the  banker  is  thus 
stated:  "When  a  negotiable  note  is  indorsed  to  a  banker  by 
the  payee  as  collateral  security  for  one  only  of  several  demands 
for  which  he  is  liable,  the  banker  has  no  lien  on  such  note  as 
security  on  any  other  demand  against  the  indorser." 

Kent  in  his  Commentaries  states  the  rule:  "The  pawnee 
will  not  be  allowed  to  retain  the  pledge  for  any  other  debt  than 
that  for  which  it  was  made,  even  though  the  holder  be  a  banker ' ' : 
2  Kent's  Com.  775. 

In  Duncan  v.  Brennan,  83  N.  Y.  487,  it  was  held  that  per- 
sonal property  pledged  for  a  particular  loan,  can  not,  in  the 
absence  of  a  special  agreement,  be  held  by  the  pledgee  for  any 
other  advance;  and  in  that  case  it  was  also  said  that  "the 
general  lien  which  bankers  have  upon  bills,  notes,  and  other 
securities  deposited  with  them  for  a  balance  due  on  general 
account,  can  not  exist  where  the  pledge  of  property  is  for  a 
specific  sum,  and  not  a  general  pledge." 

In  the  ease  of  Neponset  Bank  v.  Leland,  5  Met.  259,  it  was 

105 


§  26  PIGNUS,  OE  PLEDGE. 

adjudged  that  "where  a  negotiable  note  is  indorsed  to  a  bank 
by  the  payee  as  collateral  security  for  only  one  of  several  de- 
mands on  which  he  is  liable,  the  bank  has  no  lien  on  such  note 
as  security  for  any  other  demand  against  the  indorser." 

In  the  case  of  Wyckoff  v.  Anthony,  90  N.  Y.  442,  the  bonds 
in  controversy  were  pledged  by  the  plaintiff  as  collateral  security 
for  a  note  of  eight  thousand  dollars.  The  plaintiff  tendered 
the  firm  the  amount  of  the  debt  and  interest,  and  demanded  the 
securities.  The  defendants  refused  to  deliver  them  unless  the 
plaintiff  would  pay  another  claim  of  the  defendants  against  the 
plaintiff,  for  which  the  bonds  had  not  been  specifically  pledged. 

The  plaintiff  then  brought  his  action  for  the  value  of  the 
bonds,  alleging  their  conversion  by  the  defendants.  It  was  held 
that  "where  securities  are  pledged  to  a  banker  or  broker  for 
the  payment  of  a  particular  loan  or  debt,  he  has  no  lien  on  the 
securities  for  a  general  balance,  or  for  the  payment  of  other 
claims,"  and  a  recovery  was  permitted. 

We  have  found  no  case  decided  by  the  courts  of  this  country 
sustaining  the  position  assumed  by  counsel  for  the  appellant, 
and  the  English  cases  relied  on,  particularly  the  case  of  Davis 
V.  Bowsher,  5  Term  Rep.  488,  decided  by  Lord  Kenyon,  states 
the  rule  to  be,  that  by  the  general  law  of  the  land  a  banker 
has  a  general  lien  upon  all  the  securities  in  his  hands  belong- 
ing to  any  particular  person  for"  his  general  balance,  unless 
there  be  evidence  to  show  that  he  received  any  particular  se- 
curity under  special  circumstances,  which  would  take  it  out  of 
the  common  rule. 

This  general  lien  arises  from  the  usage  of  trade;  and  the 
fact  that  the  parties  have  made  the  pledge  for  the  particular 
debt  must  be  held  to  exclude  the  intention  of  creating  or  re- 
lying on  a  lien  that  would  otherwise  exist  upon  the  general 
deposit  account.  It  is  a  special  deposit  or  pledge  for  a  special 
purpose,  and  when  that  purpose  is  accomplished,  the  lien  ceases 
to  exist.  A  general  lien  in  such  a  case  would  be  inconsistent 
with  the  special  undertaking:  Grant  on  Banking,  168. 

Counsel  on  each  side  in  this  case  have  bestowed  much  labor 
in  presenting  and  reviewing  the  authorities  on  this  question, 
and  w^hile  some  of  the  English  cases  would  tend  to  sustain  the 
claim  of  lien,  the  whole  current  of  American  authority  is 
against  such  a  doctrine. 

Nor  is  the  appellant  entitled  to  a  set-off,  either  at  law  or 
equity,  against  this  claim  of  the  administrator.  Mutual  debts 
existing  between  the  intestate  and  the  bank  might  be  set  off 
by  the  bank,  either  at  law  or  equity;  but  in  this  case,  there 

106 


HOUTON  V.  HOLLIDAY.  §§  26,  27 

was  no  debt  due  the  intestate.  The  latter  was  liable  to  the 
bank  for  a  large  sum  of  money,  and  had  pledged  his  stock  in 
a  corporation  to  pay  a  part  of  the  debt  only.  The  stock  was 
not  converted  by  the  bank  into  money  during  the  life  of  the 
intestate,  and  no  lien,  legal  or  equitable,  existed  on  the 
part  of  the  bank  outside  of  the  pledge.  The  stock  was  the  prop- 
erty of  the  intestate  in  the  possession  of  the  bank,  and  at  his 
death  the  title  vested  in  his  personal  representative.  If  Bangs 
had  mortgaged  his  personal  property  to  secure  this  debt,  a 
satisfaction  of  the  mortgage  debt  by  a  sale  of  a  part  of  the  per- 
sonalty would  have  left  the  intestate  entitled  to  the  remainder 
free  of  any  encumbrance  by  reason  of  the  mortgage,  and  the 
pledge  by  a  delivery  of  the  possession  of  the  stock  to  the  bank 
only  invested  it  with  an  equity  to  the  extent  of  the  pledge  made. 
Equitable  rights  might  have  arisen  as  between  the  intestate, 
if  living,  and  the  bank,  entitling  the  latter  to  some  of  the  pro- 
visional remedies  authorized  by  the  code;  but  here  the  personal 
assets,  after  satisfying  the  lien,  vested  in  the  administrator,  and 
the  specific  lien  having  been  removed,  the  surplus  is  for  dis- 
tribution between  creditors,  as  provided  in  sections  33  and  34 
of  article  2,  chapter  39,  General  Statutes. 

When  the  personal  estate  is  covered  by  liens  giving  a  creditor 
priority,  the  residue,  after  satisfying  the  lien,  must  be  paid  to 
other  creditors  until  they  have  received  a  sum  equal,  pro  rata, 
with  the  lien  creditor.  This  statutory  provision  applies  to  all 
liens  created  on  the  personal  estate,  whether  by  operation  of 
law  or  by  express  contract  between  the  parties:  Spratt  v.  First 
National  Bank  of  Richmond,  84  Ky.  85. 

The  estate  being  insolvent  in  any  event,  the  bank  must  stand 
back  until  the  other  creditors  are  made  equal  to  the  lien  as- 
serted and  allowed  it  by  reason  of  the  pledge. 

The  judgment  below,  conforming  to  these  views,  must  be 
affirmed. 


27.    HOUTON  V.  HOLLIDAY, 

2  Murphy  (N.  C.)  Ill;  5  Am.  D.  522,    1812. 

Quantum  meruit  for  money  had  and  received.  Henry  Taylor 
borrowed  of  Holliday  $200.00  and  pledged  as  security  his  negro 
slave,  whose  services  were  worth  $60.00  a  year.  Taylor  died, 
leaving  the  slave  to  his  daughter  Lucy,  who  a  year  later  married 
Houton.     The  latter  paid  the  loan,  received  back  the  slave  and 

107 


§  27  PIGNUS,  OE  PLEDGE. 

demanded  of  Holliday  pay  for  the  services  of  the  slave  from 
Taylor's  death  until  payment  of  the  loan.  Verdict  for  plaintiff 
for  excess  of  the  services  over  interest  on  the  loan. 

By  Court,  Taylor,  C.  J.  It  has  been  the  uniform  practice  of 
the  courts  of  equity  of  this  state,  to  make  a  mortgagee  in  pos- 
session to  account  for  the  rents  and  profits  upon  a  bill  filed  for 
redemption.  This  is  a  necessary  consequence  of  the  principles 
which  prevail  in  those  courts  relative  to  a  mortgage,  which  is 
considered  only  as  a  security  for  money  lent,  and  the  mortgagee 
a  trustee  for  the  mortgagor.  To  sanction  an  opposite  doctrine, 
even  in  the  case  of  pledges  where  the  profits  exceed  the  interest 
of  the  money  lent,  would  be  to  furnish  facilities  for  the  evasion 
of  the  statute  against  usviry,  almost  amounting  to  a  repeal  of 
that  salutary  law.  Nothing  can  come  more  completely  within 
the  legal  notion  of  a  pledge,  than  the  slave  held  by  Holliday  in 
the  present  case,  for  by  the  very  terms  of  the  contract,  it  was 
so  to  continue  until  the  money  should  be  paid;  no  legal  prop- 
erty vesting  in  Holliday,  who  had  only  a  lien  upon  it  to  secure 
his  debt.  All  the  profits,  therefore,  exceeding  the  interest  of 
his  debt,  he  received  to  the  plaintiff's  use,  and  cannot  con- 
scientiously withhold.  Wherever  a  man  receives  money  be- 
longing to  another,  without  any  valuable  consideration  given, 
the  law  implies  that  the  person  receiving,  promised  to  account 
for  it  to  the  true  owner;  and  the  breach  of  such  implied  under- 
taking is  to  be  compensated  for  in  the  present  form  of  action, 
which  is  according  to  Mr.  Justice  Blackstone,  "a  very  exten- 
sive and  beneficial  remedy,  applicable  to  almost  every  case 
where  a  person  has  received  money,  which  ex  aequo  et  hono,  he 
ought  to  refund."  Nor  is  its  application  to  cases  like  the  pres- 
ent, without  authority  from  direct  adjudication;  the  case  of 
Astley  V.  Reynolds,  Strange,  915,  furnishes  an  instance  of  a  man 
being  allowed  to  receive  the  surplus  which  he  had  paid  beyond 
legal  interest,  in  order  to  get  possession  of  goods  which  he  had 
pledged.  In  principle,  the  cases  are  the  same;  the  only  thing 
in  which  they  differ  is,  that  in  the  case  before  us,  the  money 
was  received  by  the  defendant  from  the  labor  of  the  pledge;  in 
the  other,  it  was  paid  by  the  sheriff. 

Let  judgment  be  entered  for  the  plaintiff. 


108 


GEMMELL  v.  DAVIS.  §  28 

A  28.     GEMMELL  V.  DAVIS, 
75  Md.  546;  23  Atl.  R.  1032;  32  Am.  St.  B.  412.    1892. 

Appeal  from  an  auditor's  order  for  distribution  of  dividends 
of  stock  in  a  corporation. 

McSherry,  J.  (After  deciding  that  a  corporation  has  no  lien 
on  the^stock  of  a^  stockholder  to  satisfy  a  debt  due  the  company 
from  him.)  There  was  some  additional  evidence  taken  relative 
to  the  ownership  of  Bry don's  stock.  It  appears  from  this  evi- 
dence that  Brydon's  stock  was  first  pledged  by  him  to  Henry 
G.  Davis  and  Company  on  August  27,  1874.  No  assignment  was 
then  indorsed  on  the  certificates,  but  the  certificates  were  placed 
by  Brydon  in  an  envelope,  and  were  delivered  to  one  of  the 
members  of  the  firm  of  Henry  G.  Davis  and  Company,  and 
upon  or  accompanying  the  envelope  was  this  memorandum, 
viz.:  "August  27,  1874.  Five  hundred  and  three  shares  stock 
of  the  North  Branch  Company  William  A.  Brydon  placed  in 
the  hands  of  W.  R.  Davis  as  collateral  for  certain  advances 
by  H.  G.  Davis  &  Co.  Received  August  27,  1874,  four  hundred 
dollars.  W.  A.  Brydon."  Subsequently  the  assignment  of  No- 
vember 13,  1888,  was  written  on  the  certificates,  which,  since 
their  delivery  on  August  27,  1874,  have  been  continuously  in  the 
possession  of  Henry  G.  Davis  and  Company.  Brydon  testified 
that  the  assignment  was  made  for  the  purpose  of  pledging  the 
stock  as  collateral  security  for  the  payment  of  the  Gouverneur 
lien,  and  for  a  loan  of  four  hundred  dollars;  though  Henry  G. 
Davis  and  Company  claim  that  the  pledge  was  intended  to 
secure  numerous  other  items  of  indebtedness  on  the  part  of 
Brydon  to  them.  It  further  appears  that  on  the  twenty-eighth 
day  of  October,  1876,  Brydon  executed  the  following  transfer 
of  the  same  stock  to  his  wife,  viz.:  "For  value  received,  I 
hereby  assign  and  transfer  to  Susan  V.  Brydon  four  hundred 
and  ninety-two  shares  of  the  capital  stock  of  the  North  Branch 

Company,  being  certificates  No said  stock  being 

now  held  by  H.  G.  Davis  &  Co.  as  collateral  security  for  the  pay- 
ment of  the  Gouverneur  decree,  viz.,  $5,932.92  for  which  they 
hold  my  note  dated  June  11,  1875.  Witness  my  hand  and  seal 
this  twenty-eighth  day  of  October,  1876."  This,  he  testified, 
was  intended  as  a  collateral  security  for  his  indebtedness  to  her. 
The  Gouverneur  lien  has  been  paid  off  and  discharged.  It  was 
allowed  as  a  valid  claim  against  the  North  Branch  Company  on 
the  former  appeal  in  this  case;  and  tfiie  four  hundred  dollars 

109 


§  28  PIGNUS,  OR  PLEDGE. 

according  to  Bry don's  testimony,  have  likewise  been  settled. 
That  Brydon  was  justly  indebted  to  his  wife  when  he  executed 
this  transfer  to  her  does  not  admit  of  a  doubt.  That  he  was  also 
indebted  to  Henry  G.  Davis  and  Company  for  large  advances 
made  by  them  to  him  is  equally  certain. 

As  the  case  now  stands,  there  are  three  claimants  to  the  fund 
constituting  the  dividend  on  the  Brydon  stock,  namely,  the 
North  Branch  Company,  represented  by  its  minority  stock- 
holders: Henry  6.  Davis  and  Company,  and  Mrs.  Susan  V. 
Brydon,  though  there  is  no  contest  between  the  latter  two;  for, 
Avhilst  they  both  claim  the  fund,  they  do  not  claim  it  as  against 
each  other,  but  as  against  the  North  Branch  Company.  If 
Davis  and  Company  are  entitled  to  the  dividend,  or  if  Mrs. 
Brydon  is  entitled  to  it,  the  claim  of  the  North  Branch  Com- 
l)any  must  fall.  If  they  be  not  entitled  to  it,  the  North  Branch 
Company  will  be,  provided  Brydon  is  actually  indebted  to  it  as 
alleged. 

So  far  as  the  appellants  are  concerned,  it  makes  no  difference 
whether  the  dividend  on  the  Brydon  stock  rightfully  belongs 
to  Davis  and  Company  or  to  Mrs.  Brydon.  Unless  the  North 
Branch  Company — the  body  corporate,  not  Gemmell  and  Sin- 
clair, as  individual  stockholders — has  a  lien  on  the  dividend, 
which  lien  is  prior  in  its  equities  to  the  claims  of  Davis  and 
Company  and  Mrs.  Brydon,  the  contention  of  the  appellants 
cannot  be  sustained.  Naturally,  therefore,  the  first  question 
which  presents  itself  is,  assuming  that  Brydon  is  indebted  to 
the  North  Branch  Company  in  an  amount  twice  as  large  as 
the  dividend,  what  claim  or  lien  has  the  company  on  that  divi- 
dend? There  is  no  lien  reserved  in  the  charter  of  this  com- 
pany (Act,  1867,  c.  309),  or  even  in  its  by-laws,  in  favor  of 
the  corporation  upon  the  stock  of  any  shareholder  to  satisfy 
or  secure  a  debt  due  by  him  to  the  company.  No  such  lien 
exists  at  common  law :  Angell  and  Ames  on  Corporations,  sees. 
355,  569 ;  Cook  on  Stocks  and  Stockholders,  sec.  521 ;  Massachu- 
setts Iron  Co.  V.  Hooper,  7  Cush.  183 ;  and  unless  created  by 
statute,  or  by  the  charter,  or,  perhaps,  in  some  instances,  by  a 
usage  brought  to  the  knowledge  of,  and  acted  on  by  both  parties, 
it  does  not  exist  at  all :  Morse  on  Banks  and  Banking,  505.  As 
the  company  had,  and  could  have  had  by  implication  or  by  opera- 
tion of  law,  no  lien  on  Brydon 's  stock  to  secure  the  debt  due 
by  him  to  it,  it  was  in  no  position  to  resist  or  prevent  a  transfer 
of  that  stock  to  some  one  else ;  but  the  right  of  a  corporation  to 
withhold  a  dividend  from  a  stockholder  who  is  indebted  to  it, 
rests  upon  an  entirely  different  principle.    It  is  the  right  of  set- 

110 


GEMMELL  v.  DAVIS.  §  23 

off;  for  the  dividend  is  a  simple  debt  owing  from  the  corpora- 
tion to  the  shareholder.  As  in  every  other  case  to  which  this 
doctrine  of  set-off  is  applicable,  the  debt,  that  is,  the  dividend 
due  by  the  corporation,  must  be  payable  by  it  to  the  person  from 
whom  the  obligfation  to  the  corporation  is  demandable.  If  the 
stock  has  passed  into  the  hands  of  a  third  party  before  the  divi- 
dend has  been  declared,  the  right  of  set-off  is  gone;  because  a 
dividend  declared  after  a  transfer  of  stock  has  been  made  be- 
longs to  the  assignee,  and  not  to  the  assignor.  Had  the  stock 
in  question  been  assigned  on  the  company's  books,  and  had  new 
certificates  been  issued  in  the  name  of  Davis  and  Company,  or 
Mrs.  Brydon  before  this  dividend  was  declared,  the  right  of 
set-off  would  have  been  incontestably  extinguished.  Has  it, 
under  the  circumstances  of  this  case,  been  preserved? 

As  between  vendor  and  vendee,  or  pledgor  and  pledgee,  of 
stock;  a  transfer  on  the  books  of  the  company  is  not  essential 
to  perfect  an  equitable  title  in  the  vendee  or  pledgee :  Noble  v. 
Turner,  69  Md.  519,  16  Atl.  R.  124;  Baltimore  etc.  Brick  Co.  v. 
Mali,  65  Ud.  96,  3  Atl.  R.  285,  57  Am.  Rep.  304;  Cecil  Nat. 
Bank  v.  Watsonto^\Ti  Bank,  105  U.  S.  217;  Johnston  v.  Laflin, 
103  U.  S.  800.  This  principle  is  fully  recognized  by  the  act  of 
1886,  chapter  287,  embodied  in  section  277,  article  23  of  the 
code.  By  the  assignment  and  delivery  of  certificates  the  title 
passed  to  the  pledgee.  As  between  vendor  and  vendee  of  shares 
of  stock  it  is  the  settled  rule  that  the  vendee  is  entitled  to  all  the 
dividends  on  the  stock  which  are  declared  after  the  sale  of  the 
stock.  In  other  words,  dijMeiids  belong  to  the  person  entitled  to 
the  stock  when  the  dividends  are  declared.  Abercrombie  v.  Rid- 
dle, 3  Md.  Ch.  320.  Evm  though  the  transfer  has  not  been 
recorded,  the  transferee  has  a  right  to  the  dividends,  as  against 
the  transferrer:  Cook  on  Stocks  and  Stockholders,  sec.  541.  A 
pledgee  is  protected  in  the  same  way  as  a  purchaser  of  stock: 
Cook  on  Stocks  and  Stockholders,  sec.  432;  and  consequently 
dividends  declared  during  the  continuance  of  the  pledge  belong 
to_hira,  though  he  is  not  registered  as  owner  on  the  corporate 
books :  Cook  on  Stocks  and  Stockholders,  sec.  468 ;  Hill  v.  Newi- 
chawanick  Co.,  8  Hun,  459,  affirmed  in  71  N.  Y.  593,  If  not  so 
registered,  and  the  corporation  pays  the  dividend  in  good  faith 
and  without  notice  of  the  transfer  to  the  nominal  owner,  the 
payment  would  be  undoubtedly  a  good  one;  but  a  pledgee  who 
neglects  to  notify  the  corporation  that  he  holds  the  stock  in 
pledge,  or  to  take  the  proper  steps  to  secure  title  to  the  stock  in 
his  own  name,  will  not  be  protected  against  the  lien  of  the  cor- 
poration upon  the  stock  to  secure  the  payment  of  an  indebted- 
Ill 


§§  28,  29  PIGNUS,  OK  PLEDGE. 

ness  contracted  to  the  company  by  the  pledgor  in  the  meantime, 
and  subsequently  to  the  pledge  of  the  shares:     Cook  on  Stocks 
and  Stockholders,  sec.  525. 
Order  affirmed  with  costs. 


29.     WRIGHT  V.  BANK  OF  METROPOLIS, 

110  N.  Y.  237;  18  N.  E.  B.  79;  6  Am.  St.  B.  356.    1888. 

Damages  for  the  conversion  of  stock  owned  by  "Wright,  and 
loaned  by  him  to  one  Elliott  to  be  used  as  security  for  a  note 
due  the  bank,  but  not  to  be  sold  for  six  months,  January  23, 
1878,  Elliott  informed  the  bank  that  ]\Ir.  Wright  consented  to  a 
sale  of  the  stock.  January  29,  1878,  the  stock  was  sold.  It  was 
the  owner's  son  who  gave  the  assent,  and  when  plaintiff  learned 
of  the  sale.  May  9,  he  demanded  the  stock,  tendering  the  amount 
for  which  it  had  been  pledged,  October  7,  1879,  he  began  suit. 
February  14,  1881,  it  had  reached  the  highest  price,  $18,003. 
Verdict  for  plaintiff  for  $3,391.25.  There  was  no  evidence  to 
show  that  the  stock  was  ever  worth  just  that  amount.  Both 
parties  were  dissatisfied  with  the  amount  and  appealed, 

Peckham,  J.  This  case  comes  before  us  in  a  somewhat  pecu- 
liar condition.  As  both  parties  appeal  from  the  same  judgment, 
which  is  for  a  sum  of  money  only,  it  would  seem  as  if  there 
ought  not  to  be  much  difficulty  in  obtaining  its  reversal.  It 
is  obvious,  however,  that  a  mere  reversal  would  do  neither  party 
any  good,  as  the  case  would  then  go  down  for  a  new  trial,  leav- 
ing the  important  legal  question  in  the  case  not  passed  upon 
by  this  court.  This,  we  think,  would  be  an  injustice  to  both 
sides.  The  case  is  here,  and  the  main  question  is  in  regard  to 
the  rule  of  damages,  and  we  think  it  ought  to  be  decided.  By 
this  charge,  the  case  was  left  to  the  jury  to  give  the  highest 
price  the  stock  could  have  been  sold  for  intermediate  its  con- 
version and  the  day  of  trial,  provided  the  jury  thought,  under 
all  the  circumstances,  that  the  action  had  been  commenced  within 
a  reasonable  time  after  the  conversion,  and  had  been  prosecuted 
with  reasonable  diligence  since.  Authority  for  this  rule  is 
claimed  under  Romaine  v.  Van  Allen,  26  N.  Y.  309,  and  sev- 
eral other  cases  of  a  somewhat  similar  nature  referred  to  therein, 
Markham  v.  Jaudon,  41  Id.  235,  followed  the  rule  laid  down  in 
Romaine  v.  Van  Allen,  supra.  In  these  cases,  a  recovery  was 
permitted  which  gave  the  plaintiff  the  highest  price  of  the  stock 
between  the  conversion  and  the  trial.     In  the  Markham  case, 

112 


WEIGHT  V.  BANK  OF  METKOPOLIS.  §  29 

the  plaintiff  had  not  paid  for  the  stocks,  but  was  having  them 
carried  for  him  by  his  broker  (the  defendant)  on  a  margin. 
Yet  this  fact  was  not  regarded  as  making  any  difference  in  the 
rule  of  damages,  and  the  ease  was  thought  to  be  controlled  by 
that  of  Romaine. 

In  this  state  of  the  rule  the  case  of  Matthews  v.  Coe,  49  N. 
Y.  57-62,  came  before  the  court.  The  precise  question  was  not 
therein  involved,  but  the  court  (per  Church,  C.  J.)  took  occa- 
sion to  intimate  that  it  was  not  entirely  satisfied  with  the  cor- 
rectness of  the  rule  in  any  case  not  special  and  exceptional  in 
its  circumstances,  and  the  learned  judge  added  that  they  did 
not  regard  the  rule  as  so  firmly  settled  by  authority  as  to  be 
beyond  the  reach  of  review  whenever  an  occasion  should  render 
it  necessary.  One  phase  of  the  question  again  came  before  this 
court,  and  in  proper  form,  in  Baker  v.  Drake,  53  N.  Y.  211,  13 
Am.  Rep.  507,  where  plaintiff  had  paid  but  a  small  percentage 
on  the  value  of  the  stock,  and  his  broker,  the  defendant,  was 
carrying  the  same  on  a  margin,  and  the  plaintiff  had  recovered 
in  the  court  below,  as  damages  for  the  unauthorized  sale  of  the 
stock,  the  highest  price  between  the  time  of  conversion  and  the 
time  of  trial.  The  rule  was  applied  to  substantially  the  same 
facts  as  in  Markham  v.  Jaudon,  supra,  and  that  case  was  cited 
as  authority  for  the  decision  of  the  court  below.  This  court, 
however,  reversed  the  judgment,  and  disapproved  the  rule  of 
damages  which  had  been  applied.  The  opinion  was  written 
by  that  very  able  and  learned  judge,  Rapallo,  and  all  the  cases 
pertaining  to  the  subject  were  reviewed  by  him,  and  in  such  a 
masterly  manner  as  to  leave  nothing  further  for  us  to  do  in 
that  direction.  We  think  the  reasoning  of  the  opinion  calls  for 
a  reversal  of  this  judgment. 

In  the  course  of  his  opinion  the  judge  said  that  the  rule  of 
damages,  as  laid  down  by  the  trial  court,  following  the  case  of 
Markham  v.  Jaudon,  supra,  had  "been  recognized  and  adopted 
in  several  late  adjudications  in  this  state  in  actions  for  the 
conversion  of  property  of  fluctuating  value;  but  its  soundness, 
as  a  general  rule  applicable  to  all  cases  of  conversion  of  such 
property,  has  been  seriously  questioned,  and  is  denied  in  va- 
rious adjudications  in  this  and  other  states."  The  rule  was 
not  regarded  as  one  of  those  settled  principles  in  the  law,  as 
to  the  measure  of  damages,  to  which  the  maxim  stare  decisis 
should  be  applied.  The  principle  upon  which  the  case  was 
decided  rested  upon  the  fundamental  theory  that  in  all  cases 
of  the  conversion  of  property  (except  where  punitive  damages 
are  allowed),  the  rule  to  be  adopted  should  be  one  which  af- 
8  113 


§  29  PIGNUS,  OE  PLEDGE. 

fords  the  plaintiff  a  just  indemnity  for  the  loss  he  has  sustained 
by  the  sale  of  the  stock ;  and  in  cases  where  a  loss  of  profits 
is  claimed,  it  should  be,  when  awarded  at  all,  an  amount  suf- 
ficient to  indemnify  the  party  injured  for  the  loss  which  is 
the  natural,  reasonable,  and  proximate  result  of  the  wrong- 
ful act  complained  of,  and  which  a  proper  degree  of  prudence 
on  the  part  of  the  complainant  would  not  have  averted. 

The  rule  thus  stated,  in  the  language  of  Judge  Rapallo,  he 
proceeds  to  apply  to  the  facts  of  the  case  before  him.  In  stat- 
ing what,  in  his  view,  would  be  a  proper  indemnity  to  the 
injured  party  in  such  a  case,  the  learned  judge  commenced 
his  statement  with  the  fact  that  the  plaintiff  did  not  hold  the 
stocks  for  investment,  and  he  added,  that  if  "they  had  been 
paid  for  and  owned  by  the  plaintiff,  different  considerations 
would  arise;  but  it  must  be  borne  in  mind  that  we  are  treat- 
ing of  a  speculation  carried  on  with  the  capital  of  the  broker 
and  not  of  the  customer.  If  the  broker  has  violated  his  con- 
tract, or  disposed  of  the  stock  without  authority,  the  customer 
is  entitled  to  recover  such  damages  as  would  naturally  be  sus- 
tained in  restoring  himself  to  the  position  of  which  he  has  been 
deprived.  He  certainly  has  no  right  to  be  placed  in  a  better 
position  than  he  would  be  in  if  the  wrong  had  not  been  done. ' ' 

The  whole  reasoning  of  the  opinion  is  still  based  upon  the 
question  as  to  what  damages  would  naturally  be  sustained  by 
the  plaintiff'  in  restoring  himself  to  the  position  he  had  been 
in;  or  in  other  words,  in  repurchasing  the  stock.  It  is  assumed 
in  the  opinion  that  the  sale  by  the  defendants  was  illegal  and 
a  conversion,  and  that  plaintiff  had  a  right  to  disaffirm  the 
sale,  and  to  require  defendants  to  replace  the  stock.  If  they 
failed,  then  the  learned  judge  says  the  plaintiff's  remedy  was 
to  do  it  himself,  and  to  charge  the  defendants  with  the  loss 
necessarily  sustained  by  him  in  doing  so.  Is  not  this  equally 
the  duty  of  a  plaintiff  who  owns  the  whole  of  the  stock  that 
has  been  wrongfully  sold?  I  mean,  of  course,  to  exclude  all 
question  of  punitive  damages  resting  on  bad  faith.  In  the 
one  ease  the  plaintiff  had  a  valid  contract  with  the  broker  to 
hold  the  stock,  and  the  broker  violates  it,  and  sells  the  stock. 
The  duty  of  the  broker  is  to  replace  it  at  once  upon  the  de- 
mand of  the  plaintiff.  In  case  he  does  not,  it  is  the  duty  of 
the  plaintiff  to  repurchase  it.  "Why  should  not  the  same  duty 
rest  upon  a  plaintiff  who  has  paid  in  full  for  his  stock,  and 
has  deposited  it  with  another  conditionally?  The  broker  who 
purchased  it  on  a  margin  for  the  plaintiff  violates  his  contract 
and  his  duty  when  he  wrongfully  sells  the  stock,  just  as  much 

114 


WEIGHT  V.  BANK  OF  METEOPOLIS.  §  29 

as  if  the  whole  purchase  price  had  been  paid  by  the  plaintiff. 
His  duty  is  in  each  case  to  replace  the  stock  upon  demand, 
and  in  case  he  fails  so  to  do,  then  the  duty  of  the  plaintiff 
springs  up,  and  he  should  repurchase  the  stock  himself.  This 
duty,  it  seems  to  me,  is  founded  upon  the  general  duty  which 
one  owes  to  another,  who  converts  his  property  under  an  honest 
mistake,  to  render  the  resulting  damage  as  light  as  it  may  be 
reasonably  within  his  power  to  do. 

It  is  well  said  by  Earl,  J.,  in  Parsons  v.  Sutton,  66  N.  Y.  92, 
that  "the  party  who  suft'ers  from  a  breach  of  contract  must  so 
act  as  to  make  his  damages  as  small  as  he  reasonably  can. 
He  must  not,  by  inattention,  want  of  care,  or  inexcusable  neg- 
ligence, permit  his  damage  to  grow,  and  then  charge  it  all  to 
the  other  party.  The  law  gives  him  all  the  redress  he  should 
have  by  indemnifying  him  for  the  damage  which  he  neces- 
sarily sustains. ' '  See  also  Dillon  v.  Anderson,  43  Id.  231 ; 
Hogle  V.  New  York  Central  etc.  R.  R.  Co.,  28  Hun,  363,  the 
latter  case  being  an  action  of  tort.  In  such  a  case  as  this, 
whether  the  action  sounds  in  tort  or  is  based  altogether  upon 
contract,  the  rule  of  damages  is  the  same:  Per  Denio,  C.  J., 
in  Scott  V.  Rogers,  31  N.  Y.  676;  and  per  Rapallo,  J.,  in  Baker 
V,  Drake,  supra.  The  rule  of  damages  as  laid  down  in  Baker  v. 
Drake,  supra,  in  cases  where  the  stock  was  purchased  by  the 
broker  on  a  margin  for  plaintiff,  and  where  the  matter  was  evi- 
dently a  speculation,  has  been  affirmed  in  the  later  cases  in  this 
court :  Gruman  v.  Smith,  81  N.  Y,  25 ;  Colt  v,  Owens,  90  Id, 
368.  In  both  cases  the  duty  of  the  plaintiff  to  repurchase  the 
stock  within  a  reasonable  time  is  stated,  I  think  the  duty 
exists  in  the  same  degree  where  the  plaintiff  had  paid  in  full 
for  the  stock,  and  was  the  absolute  owner  thereof.  In  Baker 
v,  Drake,  supra,  the  learned  judge  did  not  assume  to  declare 
that  in  a  case  where  the  pledgor  was  the  absolute  owner  of  the 
stock,  and  it  was  wrongfully  sold,  the  measure  of  damages 
must  be  as  laid  down  in  the  Romaine  case.  He  was  endeavor- 
ing to  distinguish  the  cases,  and  to  show  that  there  was  a  dif- 
ference between  the  case  of  one  who  is  engaged  in  a  specula- 
tion with  what  is  substantially  the  money  of  another,  and  the 
case  of  an  absolute  owner  of  stock  which  is  sold  wrongfully  by 
the  pledgee.  And  he  said  that  at  least  the  former  ought  not 
to  be  allowed  such  a  rule  of  damages.  It  can  be  seen,  how- 
ever, that  the  judge  was  not  satisfied  with  the  rule  in  the  Ro- 
maine case,  even  as  applied  to  the  facts  therein  stated.  In  his 
opinion  he  makes  u^e  of  this  language:  "In  a  case  where  the 
loss  of  probable  profits  is  claimed  as  an  element  of  damage,  if 

115 


§  29  HGNUS,  OR  PLEDGE. 

it  be  ever  allowable  to  mulct  a  defendant  for  such  a  conjec- 
tural loss,  its  amount  is  a  question  of  fact,  and  a  finding  in 
regard  to  it  should  be  based  upon  some  evidence. ' '  In  order  to 
refuse  to  the  plaintiff  in  that  case,  however,  the  damages 
claimed,  it  was  necessary  to  overrule  the  IMarkham  case,  which 
was  done. 

Now,  so  far  as  the  duty  to  repurchase  the  stock  is  concerned, 
I  see  no  difference  in  the  two  cases.  There  is  no  material  dis- 
tinction in  the  fact  of  ownership  of  the  whole  stock  which 
should  place  the  plaintiff  outside  of  any  liability  to  repurchase 
after  notice  of  sale,  and  should  render  the  defendant  con- 
tinuously liable  for  any  higher  price  to  which  the  stock  might 
rise  after  conversion  and  before  trial.  As  the  same  liability 
on  the  part  of  defendant  exists  in  each  case  to  replace  the 
stock,  and  as  he  is  technically  a  wrong-doer  in  both  cases,  but 
in  one  no  more  than  in  the  other,  he  should  respond  in  the 
same  measure  of  damages  in  both  cases,  and  that  measure  is 
the  amount  which,  in  the  language  of  Rapallo,  J.,  is  the 
natural,  reasonable,  and  proximate  result  of  the  wrongful  act 
complained  of,  and  which  a  proper  degree  of  prudence  on  the 
part  of  the  plaintiff  would  not  have  averted.  The  loss  of  a 
sale  of  the  stock  at  the  highest  price  down  to  trial  would  seem 
to  be  a  less  natural  and  proximate  result  of  the  wrongful  act 
of  the  defendant  in  selling  it  when  plaintiff  had  the  stock  for 
an  investment  than  when  he  had  it  for  a  speculation ;  for  the 
intent  to  keep  it  as  an  investment  is  at  war  with  any  intent  to 
sell  it  at  any  price,  even  the  highest.  But  in  both  cases  the 
qualification  attaches  that  the  loss  shall  only  be  such  as  a 
proper  degree  of  prudence  on  the  part  of  the  complainant 
would  not  have  averted;  and  a  proper  degree  of  prudence  on 
the  part  of  the  complainant  consists  in  repurchasing  the  stock 
after  notice  of  its  sale,  and  within  a  reasonable  time.  If  the 
stock  then  sells  for  less  than  the  defendant  sold  it  for,  of  course 
the  complainant  has  not  been  injured,  for  the  difference  in  the 
two  prices  inures  to  his  benefit.  If  it  sells  for  more,  that  dif- 
ference the  defendant  should  pay. 

It  is  said  that  as  he  had  already  paid  for  the  stock  once,  it 
is  unreasonable  to  ask  the  owner  to  go  in  the  market  and  re- 
purchase it.  I  do  not  see  the  force  of  this  distinction.  In  the 
ease  of  the  stock  held  on  margin,  the  plaintiff  has  paid  his 
margin  once  to  the  broker,  and  so  it  may  be  said  that  it  is  un- 
reasonable to  ask  him  to  pay  it  over  again  in  the  purchase  of 
the  stock.  Neither  statement,  it  seems  to  me,  furnishes  any 
reason  for  holding  a  defendant  liable  to  the  rule  of  damages 

116 


WEIGHT  V.  BANK  OF  METROPOLIS.  §  29 

stated  in  this  record.  The  defendant's  liability  rests  upon  the 
ground  that  he  has  converted,  though  in  good  faith  and  under 
a  mistake  as  to  his  rights,  the  property  of  the  plaintilf.  The 
defendant  is,  therefore,  liable  to  respond  in  damages  for  the 
value.  But  the  duty  of  the  plaintiff  to  make  the  damages  as 
light  as  he  reasonably  may  rests  upon  him  in  both  cases;  for 
there  is  no  more  legal  wrong  done  by  the  defendant  in  selling 
the  stock  which  the  plaintiff  has  fully  paid  for  than  there  is 
in  selling  the  stock  which  he  has  agreed  to  hold  on  a  margin, 
and  which  agreement  he  violates  by  selling  it.  All  that  can 
be  said  is,  that  there  is  a  difference  in  amount,  as  in  one  case 
the  plaintiff's  margin  has  gone,  while  in  the  other  the  whole 
price  of  the  stock  has  been  sacrificed.  But  there  is  no  such 
difference  in  the  legal  nature  of  the  two  transactions  as  should 
leave  the  duty  resting  upon  the  plaintiff  in  the  one  case  to 
repurchase  the  stock,  and  in  the  other  case  should  wholly 
absolve  him  therefrom.  A  rule  which  requires  a  repurchase 
of  the  stock  in  a  reasonable  time  does  away  with  all  questions 
as  to  the  highest  price  before  the  commencement  of  the  suit, 
or  whether  it  was  commenced  in  a  reasonable  time  or  prose- 
cuted with  reasonable  diligence,  and  leaves  out  of  view  any 
question  as  to  the  presumption  that  plaintiff  would  have  kept 
his  stock  down  to  the  time  when  it  sold  at  the  highest  mark 
before  the  day  of  trial,  and  would  then  have  sold  it,  even 
though  he  had  owned  it  for  an  investment.  Such  a  presump- 
tion is  not  only  of  quite  a  shadowy  and  vague  nature,  but  is 
also,  as  it  would  seem,  entirely  inconsistent  with  the  fact  that 
he  was  holding  the  stock  as  an  investment.  If  kept  for  an  in- 
vestment, it  would  have  been  kept  down  to  the  day  of  trial; 
and  the  price  at  that  time  there  might  be  some  degree  of  pro- 
priety in  awarding,  under  certain  circumstances,  if  it  were 
higher  than  when  it  was  converted.  But  to  presume  in  favor 
of  an  investor  that  he  would  have  held  his  stock  during  all  of 
a  period  of  possible  depression,  and  would  have  realized  upon 
it  when  it  reached  the  highest  figure,  is  to  indulge  in  a  pre- 
sumption which,  it  is  safe  to  say,  would  not  be  based  on  fact 
once  in  a  hundred  times.  To  formulate  a  legal  liability  based 
upon  such  presumption,  I  think  is  wholly  unjust  in  such  a  case 
as  the  present.  Justice  and  fair  dealing  are  both  more  apt 
to  be  promoted  by  adhering  to  the  rule  which  imposes  the 
duty  upon  the  plaintiff  to  make  his  loss  as  light  as  possible, 
notwithstanding  the  unauthorized  act  of  the  defendant,  assum- 
ing, of  course,  in  all  cases  that  there  was  good  faith  on  the  part 
of  the  defendant. 

It  is  the  natural  and  proximate  loss  which  the  plaintiff  is 

117 


§  29  PIGNUS,  OR  PLEDGE. 

to  be  indemnified  for,  and  that  cannot  be  said  to  extend  to 
the  highest  price  before  trial,  but  only  to  the  highest  price 
reached  within  a  reasonable  time  after  the  plaintiff  has  learned 
of  the  conversion  of  his  stock  within  which  he  could  go  in  the 
market  and  repurchase  it.  What  is  a  reasonable  time  when 
the  facts  are  undisputed,  and  different  inferences  cannot  rea- 
sonably be  drawn  from  the  same  facts,  is  a  question  of  law: 
Colt  V.  Owens,  90  N.  Y.  368;  Hedges  v.  Hudson  River  R.  R. 
Co.,  49  Id.  223. 

We  think  that,  beyond  all  controversy  in  this  case,  and 
taking  all  the  facts  into  consideration,  this  reasonable  time 
had  expired  by  July  1,  1878,  following  the  9th  of  May  of  the 
same  year.  The  highest  price  which  the  stock  reached  during 
that  period  was  $2,795,  and  as  it  is  not  certain  on  what  day 
the  plaintiff  might  have  purchased,  we  think  it  fair  to  give 
him  the  highest  price  it  reached  in  that  time.  From  this 
should  be  deducted  the  amount  of  the  cheek  and  interest  to 
the  day  when  the  stock  was  sold,  as  then,  it  is  presumed,  the 
defendant  paid  the  check  with  the  proceeds  of  the  sale. 

In  all  this  discussion  as  to  the  rule  of  damages,  we  have  as- 
sumed that  the  defendant  acted  in  good  faith,  in  an  honest 
mistake  as  to  its  right  to  sell  the  stock,  and  that  it  was  not  a 
case  for  punitive  damages.  A  careful  perusal  of  the  whole 
case  leads  us  to  this  conclusion.  It  is  not  needful  to  state  the 
evidence;  but  we  cannot  see  any  question  in  the  case  showing 
bad  faith,  or  indeed,  any  reason  for  its  existence.  The  fact  is 
uncontradicted  that  the  defendant  sold  the  stock  upon  what 
its  officers  supposed  Avas  the  authority  of  the  owner  thereof 
given  to  them  by  Elliott. 

The  opinion  delivered  by  the  learned  judge  at  general  term, 
while  agreeing  with  the  principle  of  this  opinion  as  to  the  rule 
of  damages  in  this  case,  sustained  the  verdict  of  the  jury 
upon  the  theory  that  if  the  plaintiff  had  gone  into  the  market 
within  a  reasonable  time,  and  purchased  an  equivalent  of  the 
stocks  converted,  he  would  have  paid  the  price  which  he  re- 
covered by  the  verdict.  This  left  the  jury  the  right  to  fix 
what  was  a  reasonable  time,  and  then  assumed  there  was  evi- 
dence to  support  the  verdict.  In  truth  there  was  no  evidence 
which  showed  the  value  of  the  stock  to  have  been  anything 
like  the  amount  of  the  verdict,  for  the  evidence  showed  it  was 
generally  very  much  less,  and  sometimes  very  much  more. 
But  fixing  what  is  a  reasonable  time  ourselves,  it  is  seen  that 
the  stock  within  that  time  was  never  of  any  such  value. 

The  judgment  should  be  reversed,  and  a  new  trial  granted, 
with  costs  to  abide  the  event. 

118 


NORTON  V.  BAXTEK.  §  30 

X30.     NORTON  V.  BAXTER, 

41  Minn.  146;  42  N.  W.  B.  863;  16  Am.  St.  R.  679.    1SS9. 

Action  of  foreclosure  on  a  note  and  mortgage  which  had  been 
pledged  to  Baxter,  who  on  default  of  the  pledgor  held  a  pre- 
tended sale.     Further  facts  are  stated  in  the  opinion. 

Dickinson,  J.  This  is  an  action  to  foreclose  a  mortgage 
upon  a  lot  of  land,  designated  as  lot  14,  executed  by  the  de- 
fendants Tousley  and  wife  to  the  plaintiff,  in  August,  1887,  and 
to  bar  or  enjoin  these  appellants,  Lucy  Baxter  and  Stephen 
H.  Baxter,  from  proceeding  to  enforce  an  earlier  mortgage,  ex- 
ecuted by  one  Nye,  in  1866,  under  circumstances  to  be  here- 
after referred  to.  This  appeal  by  the  two  defendants  just 
named  is  from  a  judgment  granting  that  relief.  The  mort- 
gage last  referred  to,  which  the  appellants  claim  the  right  to 
enforce  as  the  earlier  lien,  was  executed  under  these  circum- 
stances: September  20,  1886,  Tousley  and  wife  conveyed  sev- 
eral lots  of  land,  including  this  lot  14,  to  one  Nye,  without 
consideration,  and  for  the  use  and  benefit  of  the  grantor,  Tous- 
ley. The  same  day  Nye  gave  to  Tousley  her  (Nye's)  promis- 
sory note  for  two  thousand  five  hundred  dollars,  for  the  ac- 
commodation only  of  the  payee,  and  executed  to  him  a  mortgage 
upon  the  same  land,  in  terms  securing  the  payment  of  the  note. 
Subsequently,  prior  to  Tousley 's  mortgage  to  the  plaintiff,  Nye 
reconveyed  the  property  to  Tousley.  Wliile  Tousley  held  the 
accommodation  note  of  Nye  and  the  mortgage  securing  it,  in 
October,  1886,  he  borrowed  seven  hundred  dollars  from  the  de- 
fendant Stephen  H.  Baxter,  and  a  brother,  William  Baxter, 
giving  to  them  his  note  therefor,  payable  to  the  defendant  Lucy 
Baxter.  As  collateral  security,  Tousley  executed  an  assign- 
ment to  Lucy  Baxter  of  the  Nye  note  and  mortgage,  and  deliv- 
ered it  to  the  Baxter  brothers.  Lucy  Baxter  had  no  interest 
in  this  transaction,  and  knew  nothing  of  it,  her  name  being 
employed  for  the  benefit  of  the  brothers.  An  agreement  ac- 
companied the  assigned  note  and  mortgage,  authorizing  the 
sale  of  the  pledge  after  notice,  upon  default  of  Tousley  to 
pay  the  debt  secured  thereby.  June  22,  1888,  W.  H.  Baxter, 
assuming  to  act  in  behalf  of  Lucy,  after  notice  to  Tousley,  of- 
fered the  pledged  note  and  mortgage  for  sale  at  auction.  Tous-. 
ley  bid  $800  for  it,  and  no  other  bona  fide  bid  was  made;  but 
the  note  and  mortgage  were  struck  off  to  one  Prouty,  at  $817. 
The  securities  were  then  assigned  to  him,  although  he  paid  noth- 
ing therefor,  and  he  reassigned  the  same  to  Stephen  H.  Baxter. 

119 


§  30  PIGNUS,  OR  PLEDGE. 

June  29,  1888,  Tousley  tendered  to  the  Baxter  brothers,  who 
then  had  possession  of  the  Nye  note  and  mortgage,  and  to 
Stephen  H.  Baxter,  the  sum  of  $820  in  payment  of  his  own 
note,  which  the  Nye  note  and  mortgage  had  been  pledged  to 
secure.  This  tender  was  sufficient  in  amount  to  pay  his  debt. 
The  tender  was  refused. 

The  pretended  sale  of  the  pledged  securities  to  Prouty,  and 
the  assignment  of  the  same  to  him,  and  by  him  to  Stephen  H. 
Baxter,  were  not  effectual  as  a  sale  of  the  securities  so  as  to 
extinguish  or  prejudice  the  previously  existing  rights  of  the 
pledgor.  The  general  property  in  the  pledge  remained  in  the 
pledgor  after  as  well  as  before  default.  The  default  of  the 
pledgor  to  pay  his  debt  at  maturity  in  no  way  affected  the 
nature  of  the  pledgee's  rights  concerning  the  property,  except 
that  he  then  became  entitled  to  proceed  to  make  the  securities 
available,  in  the  manner  prescribed  by  law  or  by  the  terms  of 
the  contract.  It  is  not  the  case  of  a  defeasible  title  becoming 
absolute  at  law  by  default  in  the  performance  of  the  pre- 
scribed condition.  The  property  w-as  held  as  security  before 
default.  It  was  held  only  as  security  after  default.  The 
pledgee  was  authorized  to  sell  the  securities,  and  by  a  sale  in 
good  faith  the  pledgor  would  have  been  divested  of  his  prop- 
erty. But  the  pledgee  could  not  give  it  away,  so  as  to  afi'ect 
the  rights  of  the  pledgor,  nor  could  a  pretended  and  merely 
colorable  sale,  without  consideration,  divest  the  pledgor  of  his 
rights  as  such,  or  confer  upon  the  pretended  purchaser  any 
greater  interest  than  that  held  by  the  pledgee. 

The  question  which  the  appellants  now  present  is,  whether, 
upon  tender  of  payment  of  the  principal  debt,  the  pledged 
note  and  mortgage  ceased  to  be  available  and  enforceable  as 
collateral  securities.  It  is  a  general  principle  that  tender  of 
payment  of  a  debt,  to  secure  which  personal  property  has  been 
pledged,  discharges  the  lien,  terminating  the  special  property 
rights  of  the  pledgee:  Coggs  v.  Bernard,  2  Ld.  Raym.  909,  917; 
EatclifP  V.  Davies,  Cro.  Jac.  244 ;  Hancock  v.  Franklin  Insurance 
Co.,  114  Mass.  155;  Plathaway  v.  Fall  River  Nat.  Bank,  131 
Mass.  14;  Ball  v.  Stanley,  5  Yerg.  199 ;  26  Am.  Dec.  263 ;  Mitchell 
V.  Roberts,  17  Fed.  Rep.  776;  Loughborough  v.  McNevin,  74 
Cal.  250 ;  15  Pac.  R.  773 ;  5  Am.  St.  Rep.  435 ;  Ratcliff  v.  Vance, 
2  Const.  S.  C.  239;  Kortright  v.  Cady,  21  N.  Y.  343;  78  Am. 
Dec.  145 ;  Cass  v.  Higenbotam,  100  N.  Y.  248 ;  3  N.  E.  R.  189 ; 
Moynahan  v.  Moore,  9  Mich.  8;  77  Am.  Dec.  468;  Stewart  v. 
BrowTi,  48  Mich.  383;  12  N.  W.  R.  499.  The  appellants  con- 
cede that  while  the  general  rule  is  that  tender  of  the  amount 

120 


NOETON  V.  BAXTER.  I  30 

due,  at  the  time  it  becomes  due,  discharges  the  lien  of  col- 
lateral securities,  yet  contend  that  such  is  not  the  effect  of 
a  tender  after  that  time.  Such  a  distinction  has  been  recog- 
nized in  respect  to  mortgages,  based  upon  the  fact  that  the 
legal  title  has  become  vested  in  the  mortgagee.  No  such  dis- 
tinction can  be  made  in  the  case  of  bailments  of  personal 
property  as  security.  The  relations  and  rights  of  the  parties 
are  unchanged  by  the  occurrence  of  the  default.  The  pledgee 
has  not  even  after  default  the  absolute  legal  title.  The  char- 
acter of  the  bailment  is  not  changed.  It  is  still  a  pledge,  and 
can  be  enforced  or  made  available  only  as  such.  But  the  very 
terms  of  the  contract  in  this  case  were,  that  if  the  debt  should 
be  paid  "before  the  sale  of  said  property,"  the  property  should 
be  returned. 

The  appellants  rely,  also,  upon  the  fact  that,  so  far  as  ap- 
pears, the  tender  of  Tousley  was  not  kept  good.  There  is  some 
conflict  in  the  authorities  at  the  present  day  as  to  the  neces- 
sity for  this,  in  general,  in  order  that  the  lien  of  the  pledge 
may  be  discharged.  We  deem  it  unnecessary  to  determine 
whether  the  strict  rule  of  the  common  law  has  been  modified. 
It  may  be  conceded,  for  the  purposes  of  this  case,  that  upon 
equitable  grounds  a  pledgor,  whose  tender  has  been  refused, 
should  not  be  allowed  affirmative  relief,  especially  of  an  equit- 
able nature,  unless  he  has  kept  good  his  tender,  or  at  least 
comes  before  the  court  in  an  attitude  of  willingness  to  pay 
what  is  due  from  him:  Tuthill  v.  Morris,  81  N.  Y.  94.  The 
defendants  in  this  case  are  not  entitled  to  favor  upon  equit- 
able grounds.  The  tender  made  by  Tousley,  the  common  debtor 
of  both  parties,  was  sufficient,  and,  so  far  as  appears,  there 
was  nothing  to  justify  the  refusal  to  accept  it  or  to  qualify 
the  strict  legal  effect  of  the  refusal.  After  an  unauthorized, 
and  as  it  would  seem  a  fraudulent,  sale,  Baxter,  who  was  a 
party  to  it,  refusing  to  accept  from  Tousley  the  payment  of 
his  debt,  asserts  in  this  action  the  right  to  hold  and  enforce 
the  pledged  securities,  not  merely  as  securities  for  his  debt  of 
seven  hundred  dollars,  but  as  his  own  property,  the  mortgage 
being  an  encumbrance  of  two  thousand  five  hundred  dollars, 
with  interest.  This  plaintiff'  has  nof  been  in  default.  He 
owes  nothing  to  the  defendants,  and  is  not  chargeable  with 
fault  because  the  debtor  did  not  keep  his  tender  good.  He 
also  is  a  creditor  of  Tousley,  having  mortgage  security  junior 
to  that  which  was  pledged  to  the  defendants.  Tousley,  the  com- 
mon debtor,  was  bound  to  pay  both.  The  unjustified  refusal 
of  Baxter  to  accept  payment  was  prejudicial  to  the  plaintiff 

121 


|§  30,  31  PIGNUS,  OK  PLEDGE. 

holding  the  junior  mortgage.  The  pledged  note  and  mortgage 
of  Nye,  if  released  from  the  pledge,  would  not,  as  to  the  plain- 
tiff, have  been  available  in  Tousley's  hands  as  a  senior  encum- 
brance upon  the  land,  having  been  executed  for  the  accommo- 
dation of  Tousley.  In  view  of  the  relations  between  the  plain- 
tiff and  Baxter,  there  appears  to  be  nothing  to  modify  the  strict 
rule  of  the  common  law,  that  a  tender  of  payment  of  the  debt 
discharges  the  pledge,  so  far,  at  least,  as  it  affects  the  plaintiff. 
Of  course  the  debt  of  Tousley  was  not  thus  discharged. 
Judgment  affirmed. 


31.     ROBINSON  V.  HURLEY, 

11  la.  410;  79  Am.  D.  497.    1860. 

Action  for  $554.69  due  on  promissory  note.  Plea  of  payment 
and  set-off.  As  security  for  the  note  defendant  gave  plaintiff 
t\^'^o  city  orders  on  the  treasurer  of  Dubuque  city  for  $500  and 
$250,  respectively,  with  right,  if  note  was  not  paid  at  maturity, 
to  sell  at  private  sale,  and  satisfy  the  note  and  costs  out  of  the 
proceeds.  The  note  was  not  paid,  and  six  months  later  plaintiff 
sold  the  scrip  at  45  cents  on  the  dollar.  Evidence  that  it  was 
Vv'orth  75  to  80  cents  at  the  maturity  of  the  note,  and  40  cents 
at  the  time  it  was  sold,  was  excluded.  Verdict  of  $77.50  for 
defendant. 

By  Court,  Lowe,  C.  J.  Upon  the  foregoing  facts,  the  court,  at 
the  request  of  the  defendant,  gfve  the  following  instructions  as 
the  law  of  this  case,  to  wit :  That  under  the  receipt  offered  in 
evidence  by  defendant,  if  the  plaintiff  sold  the  scrip  at  all,  he 
was  re(iuired  by  the  terms  of  the  receipt  to  sell  the  same  at  or 
about  the  time  of  the  maturity  of  the  note;  and  that  if  they 
(the  jury)  find  from  the  evidence  that  said  plaintiff  had  not 
sold  the  scrip,  he  was  liable  for  the  value  of  said  scrip  at  or 
about  the  time  of  the  maturity  of  the  note.  The  court  also 
refused  to  charge  the  jury  that  the  value  of  the  scrip,  at  the 
time  it  was  sold  by  the  plaintiff,  was  the  measure  of  his  lia- 
bility to  the  defendant  for  the  same. 

If  the  plaintiff  acted  tortiously  or  misappropriated  the  scrip 
in  disposing  of  it  at  the  time  he  did,  the  above  rule  of  damages 
would  seem  to  be  proper  and  just.  But  if  it  was  his  right. 
Tinder  the  law  which  governs  pledges,  even  as  modified  by  the 
contract  of  the  parties  in  this  case,  to  sell  these  collateral  se- 
curities at  the  time  and  under  the  circumstances  which  he  did, 
then  there  was  no  misappropriation,  and  a  different  criterion 

122 


KOBINSON  V.  HURLEY.  §  31 

of  damages  obtains,  to  wit,  the  value  of  the  scrip  at  the  time  of 
its  conversion. 

That  we  may  arrive  at  a  better  nnclerstanding  of  the  rights, 
duties,  and  obligations  of  the  parties  under  the  receipt  in  ques- 
tion, let  us  inquire  what  they  would  be  under  the  law  in  the 
absence  of  such  a  contract.  After  the  debt  falls  due,  the 
pledgee,  under  the  law,  has  his  election  to  pursue  one  of  three 
courses:  1.  To  proceed  personally  against  the  pledgor  for  his 
debt,  without  selling  the  collateral  security;  or  2.  To  file  a  bill 
in  chancery,  and  have  a  judicial  sale  under  a  regular  decree  of 
foreclosure;  or  3.  To  sell  without  judicial  process,  upon  giving 
reasonable  notice  to  the  debtor  to  redeem:  2  Kent's  Com.,  9th 
ed.,  785 ;  Tucker  v.  Wilson,  1  P.  Wms.  261 ;  Lockwood  v.  Ewer, 
2  Atk.  303.  The  plaintiff,  in  executing  said  receipt,  did  not 
waive  his  right  of  adopting  either  of  the  above  methods  to 
satisfy  his  claim.  The  only  change  made  in  the  rights  and 
obligations  of  the  parties  by  this  instrument  was  simply  to 
dispense  with  notice  to  the  debtor  to  redeem  before  the  credi- 
tor could  sell.  There  is  nothing  in  the  language  or  terms  of 
this  receipt  which  obliged  the  plaintiff  to  sell  these  collaterals 
at  the  maturity  of  the  note.  He  simply  reserved  the  right  to 
do  so,  a  right  which  the  law  gave  him,  without  such  reserva- 
tion, upon  giving  notice  to  redeem.  A  postponement  of  the 
exercise  of  this  right  is  a  thing  of  which  the  debtor  cannot 
very  well  complain ;  it  only  enlarges  his  opportunity  to  redeem, 
and  thereby  prevent  any  sacrifice  that  might  result  from  a 
forced  sale  of  the  pledge.  The  depreciation  in  this  case  which 
the  scrip  in  question  suffered,  between  the  maturity  of  the 
note  and  the  sale  of  the  same,  was  without  the  fault  or  power 
of  prevention  on  the  part  of  the  plaintiff.  He  was  only  bound 
to  that  attention  and  diligence  in  the  preservation  of  the  thing 
pledged  which  a  careful  man  bestows  upon  his  own  property, 
for  the  reason  that  the  arrangement  or  contract  was  recipro- 
cally beneficial  to  both  parties.  We  conclude,  therefore,  that 
the  plaintiff,  in  selling  the  collateral  securities  at  the  time  and 
under  the  circumstances  which  he  did,  violated  no  obligation 
or  duty  growing  out  of  the  understanding  of  the  parties,  or 
expressed  by  the  receipt  or  law  itself.  And  if  we  are  right  in 
this  conclusion,  it  follows  that  the  measure  of  his  liability  for 
said  scrip  is  the  value  thereof  at  the  time  of  conversion.  This 
rule  of  damages  in  cases  of  this  kind  is  well  established :  See 
Sedgwick  on  Damages,  365,  366,  480,  481,  and  authorities  there 
cited. 

Judgment  reversed,  and  new  trial  granted. 

123 


§  32  PIGNUS,  OE  PLEDGE. 

32.     MARYLAND  INSURANCE  CO.  V.  DALRYMPLE, 

25  Md.  242;  89  Am.  D.  779.    1866. 

Action  on  counts  in  trover  for  conversion  and  in  tort  for  dam- 
ages for  the  illegal  sale  and  conversion  of  325  shares  of  Balti- 
more and  Ohio  Railroad  stock,  pledged  to  the  company  to  secure 
the  repayment  of  a  loan  to  Dalrymple  of  $19,500.00.  The  pledgee 
was  given  the  right,  if  the  loan  was  not  promptly  paid,  on  one 
day's  notice  to  sell  the  collaterals  without  further  notice.  From 
the  date  of  the  loan,  June  12th,  1860,  to  November  15th,  1860, 
the  market  price  of  the  stock  steadily  declined  from  $79  per 
share  to  $56%  per  share.  Frequent  calls  were  made  on  Dalrym- 
ple to  return  the  loan,  and  he  made  ineffectual  attempts  to 
negotiate,  but  these  had  ceased,  and  final  notice  to  pay  had  been 
given  by  the  company  and  received  by  Dalrymple  before  No- 
vember 20th,  1860.  On  that  day  the  company  had  the  shares 
publicly  sold  at  the  board  of  brokers,  and  bid  in  for  themselves 
by. a  broker  at  the  highest  obtainable  price,  $55  per  share.  An 
account  was  rendered  Dalrymple  showing  a  balance  due  from 
him  of  $1,774.50,  payment  of  which  was  demanded.  The  com- 
pany held  the  stock  till  the  spring  of  1862,  when  they  had  it  sold 
publicly  at  the  board  of  brokers  at  from  $60  to  $67  per  share, 
yielding  in  all  $19,943.75  net.  Two  dividends  were  received  by 
defendants  during  this  time.  December  16th,  1862,  Dalrymple 
tendered  defendants  the  loan  with  interest,  and  demanded  the 
stock.  The  tender  was  refused.  The  stock  at  this  time  was 
worth  $78  per  share,  and  at  the  time  of  the  trial,  $115  per  share. 
From  the  verdict  for  plaintiffs  both  parties  appealed. 

By  Court,  Bartol,  J.  (After  stating  the  facts  and  various 
prayers  of  the  parties.)  The  court  below  seems  to  have  con- 
sidered the  sales  in  1860  and  1862  as  wholly  void  and  inoperative 
and  the  bailment  still  continuing,  and  instructed  the  jury  that 
upon  proof  of  the  pledge,  and  the  tender,  demand,  and  refusal 
in  December,  1862,  the  plaintiff  was  entitled  to  recover,  and  the 
measure  of  damages  was  the  market  value  of  the  stock  at  that 
time,  together  with  the  dividend  received  by  the  defendant  in 
April,  1861,  deducting  therefrom  the  amount  of  the  loan  and 
interest.  Having  thus  stated  the  positions  taken  by  the  parties 
in  their  several  prayers,  and  by  the  court  below  in  its  instruc- 
tion to  the  jury,  we  shall  proceed  to  express  as  briefly  as  we 
can  the  judgment  of  this  court  upon  the  questions  involved, 
so  far  as  they  are  deemed  material  to  the  decision  of  the  case. 

124 


MARYLAND  INSUEANCE  CO.  v.  DALRYMPLE.  §  32 

In  doing  so,  we  shall  confine  ourselves  mainly  to  a  statement 
of  the  conclusions  we  have  reached  after  a  careful  examina- 
tion of  all  the  authorities  cited  in  argument,  without  attempt- 
ing to  refer  to  them  particularly,  or  to  reconcile  them  where 
they  may  be  in  conflict.  To  do  so  would  require  this  opinion 
to  be  extended  to  very  great  length  without,  perhaps,  subserv- 
ing any  good  purpose. 

The  first  question  that  naturally  presents  itself  for  our  con- 
sideration is  the  effect  of  the  sale  and  purchase  of  the  stock 
made  by  the  defendant  in  November,  1860.  By  the  terms  of 
the  contract,  the  loan  was  payable  on  one  day's  notice,  and  if 
not  paid  according  to  the  agreement,  the  defendant  was  au- 
thorized without  further  notice  to  sell  the  stock  pledged  for 
the  purpose  of  satisfying  the  same.  Unquestionably,  the  notice 
given  on  the  13th  of  November  was  sufficient,  under  the  con- 
tract, to  entitle  the  defendant  to  sell  on  the  20th. 

In  the  absence  of  any  express  agreement  to  the  contrary,  it 
has  been  held  in  some  cases  to  be  necessary  for  a  pledgee  be- 
fore exercising  the  power  of  sale  to  give  notice  to  the  pledgor 
of  the  time  and  place  of  sale:  Washburn  v.  Pond,  2  Allen,  474; 
and  the  same  rule  was  announced  by  the  superior  court  of 
New  York  in  Wheeler  v.  Newbould,  5  Duer,  29 ;  and  by  the  court 
of  appeals  in  the  same  case,  16  N.  Y.  392.  Without  express- 
ing any  opinion  upon  the  law  as  laid  down  in  those  cases,  it 
is  clear  it  can  have  no  application  to  a  case  where  such  notice 
is  dispensed  with  by  the  contract  of  the  parties.  Here  by 
the  words  of  the  agreement  authorizing  the  defendant  upon 
default  to  sell  without  further  notice,  we  understand  that  when 
the  power  to  sell  arose,  all  notice  of  the  time  and  place  of  sale 
was  waived  and  dispensed  with  by  the  plaintiff,  leaving  upon 
the  defendant  the  obligation  to  sell  publicly  and  fairly  for  the 
best  price  he  could  obtain:    See  2  Kent's  Com,  582,  583. 

A  sale  at  the  board  of  brokers,  publicly  and  fairly  made, 
would,  in  our  opinion,  have  been  legal  and  valid;  and  if  the 
sale  of  the  20th  of  November  had  been  made  to  a  third  person, 
it  would  have  been  a  legal  sale  under  the  contract,  vesting  a 
good  title  in  the  purchaser,  and  terminating  the  bailment.  It 
was  contended  by  the  plaintiff's  counsel  that  the  sale  must 
in  all  cases  be  made  at  public  auction,  and  that  a  sale  at  the 
broker's  board  would  not  be  legal;  and  some  decisions  in  New 
York  were  cited  in  support  of  this  view. 

In  Brown  v.  Ward,  3  Duer,  660,  it  was  said  that  a  "custom 
has  grown  up  [in  New  York],  and  been  sanctioned  by  the  courts, 
of  selling  stock  at  the  Merchants'  Exchange." 

125 


§  32  PIGNUS,  OE  PLEDGE. 

There  is  no  evidence  of  any  such  custom  in  Baltimore,  and 
considering  the  requirements  of  the  law,  and  the  reason  and 
nature  of  the  transaction,  we  are  of  the  opinion  that  the  most 
proper  and  suitable  place  for  a  sale  of  stock  is  at  the  board  of 
brokers.  There  is  the  stock  market, — the  mart  to  which  ven- 
dors and  purchasers  resort,  by  their  agents,  to  buy  and  sell 
stock,  where  competition  among  bidders  is  most  apt  to  be  found, 
— such  sales  are  public,  and  unless  there  be  in  the  particular 
case  some  ground  for  impeaching  their  fairness,  we  are  of 
opinion  they  are  reasonable  and  ought  to  be  supported. 

But,  as  we  have  seen,  the  defendant  became  itself  the  pur- 
chaser of  the  stock,  and  the  question  arises,  Wliat  was  the  legal 
effect  of  the  proceeding?  Did  it  amount  to  a  valid  and  effect- 
ual sale  so  as  either  to  vest  in  the  defendant,  as  purchaser,  an 
absolute  title,  or  to  operate  as  a  conversion  of  the  property, 
break  up  the  bailment,  and  the  relation  of  bailor  and  bailee 
between  the  parties? 

The  doctrine  that  trustees,  executors,  administrators,  and 
others  holding  fiduciary  relations  are  incompetent  to  purchase 
the  property  held  by  them  in  trust  is  well  settled:  See  Story's 
Eq.  Jur.,  sees.  321-323,  where  the  cases  are  collected.  In  sec- 
tion 323  the  learned  author  says:  "There  are  many  other 
cases  of  persons  standing  in  regard  to  each  other  in  like  con- 
fidential relations  in  which  similar  principles  apply."  Lord 
Chancellor  Cottenham,  in  Greenlaw  v.  King,  5  Jur.  18,  cited 
in  Torrey  v.  Bank  of  Orleans,  9  Paige,  663,  held  that  "the  prin- 
ciple was  not  confined  to  a  particular  class  of  persons,  such  as 
guardians,  trustees,  or  solicitors,  but  was  a  rule  of  universal 
application  to  all  persons  coming  within  the  principle,  which 
is,  that  no  party  can  be  permitted  to  purchase  an  interest  where 
he  has  a  duty  to  perform  inconsistent  with  the  character  of 
purchaser."  See  also  Keighler  v.  Savage  Mfg.  Co.,  12  Md.  384 
[71  Am.  Dec.  600]  ;  Hoffman  S.  C.  Co.  v.  Cumberland  C.  &  I. 
Co.,  16  Id.  456;  Cumberland  C.  &  I.  Co.  v.  Sherman,  20  Id.  117 
[77  Am.  Dec.  311].  This  rule  rests  upon  grounds  of  public 
policy,  and  is  enforced  without  regard  to  the  question  of  ho7ia 
fides  in  the  particular  case.  It  is  clear,  both  upon  reason  and 
authority,  that  the  case  of  pledgor  and  pledgee  comes  within 
the  rule. 

In  Story  on  Bailments,  sec.  319,  it  is  said:  "In  respect  of 
sales,  also,  there  is  a  salutary  restraint  upon  the  pawnee  to 
secure  his  fidelity  and  good  faith  that  he  can  never  become  a 
purchaser  at  the  sale.  This  rule  will  be  found  recognized  equally 
in  the  common  law  and  the  Roman  law. ' ' 

126 


MAETLAND  INSUEANCE  CO.  v.  DALEYMPLE.  §  32 

It  has  been  argued,  on  the  part  of  the  defendant,  that  this 
is  a  purely  equitable  doctrine,  to  be  enforced  only  in  courts  of 
equity  on  grounds  not  cognizable  at  law;  and  while  such  sales 
are  voidable  in  equity,  they  must  be  treated  in  this  forum  as 
valid. 

This  question  is  not  free  from  difficulty,  but  the  conclusion 
we  have  reached  from  an  examination  of  the  cases  is  clearly 
expressed  in  the  third  point  of  the  plaintiff's  brief. 

While  in  eases  of  pure  trust,  where  exclusive  jurisdiction  is 
in  equity,  resort  must  be  had  to  that  tribunal  for  relief,  and 
sometimes,  in  cases  of  quasi  trust,  that  court  will  grant  relief 
where  there  are  special  circumstances  requiring  such  inter- 
ference, as  in  Hasbrouck  v,  Vandevoort,  4  Sand.  74,  yet  the 
relation  of  pledgor  and  pledgee,  being  a  legal  relation,  its  rights 
and  duties  are  defined  by  law,  and  the  remedies  for  violation 
of  such  duties  are  ordinarily  in  a  court  of  law. 

The  sale  of  the  pledge  by  the  defendant  to  itself  was  con- 
trary to  the  faith  of  the  bailment,  forbidden,  as  we  have  shown 
by  the  citation  from  Story,  by  the  common  law,  and  might  be 
treated  by  the  bailor  at  his  election  as  a  tortious  conversion  of 
the  property.  In  this  case,  no  such  election  was  made  by  the 
plaintiff.  There  was  no  transmutation  of  title  or  change  of 
possession,  and  the  sale  being  inoperative  to  work  a  conver- 
sion, the  relation  of  the  parties  remained  unchanged  thereby. 
The  defendant  remained  in  possession  of  the  stock  as  before, 
in  the  same  manner  as  if  the  sale  had  been  attempted,  and 
both  in  fact  and  in  contemplation  of  law  the  bailment  con- 
tinued. This  point  was  decided  in  Middlesex  Bank  v.  Minot, 
4  Met.  325.  That  decision  was  followed  by  the  supreme  court 
of  Iowa  in  Bank  v.  Dubuque  &  P.  U.  U.  Co.,  8  Iowa,  277. 

Looking  at  the  reasoning  upon  which  those  decisions  rest, 
and  the  rules  and  principles  of  the  law  governing  contracts  of 
this  description,  we  are  of  opinion  that  the  decision  of  Middle- 
sex Bank  v.  Minot,  4  Met.  325,  so  far  as  this  point  is  concerned, 
was  correct.  The  sale  of  the  20th  of  November  did  not  oper- 
ate either  to  vest  the  title  in  the  defendant  as  purchaser,  or  to 
work  a  conversion  of  the  stock.  The  bailment  continued,  and 
if  nothing  more  had  been  done  subsequently,  and  the  stock 
had  remained  in  the  defendant's  possession,  there  ean  be  no 
doubt  that  the  tender  and  demand  made  on  the  16th  of  De- 
cember, 1862,  would  have  been  valid,  and  the  refusal  on  the 
part  of  the  defendant  at  that  time  would  have  given  a  good 
cause  of  action  to  the  plaintiff.  But  it  appears  from  the  proof 
that  before  that  time,   in  the  spring  of  1862,   the   defendant 

127 


§  32  PIGNUS.  OR  PLEDGE. 

caused  the  stock  to  be  sold  publicly  at  the  board  of  brokers, 
and  it  was  transferred  to  the  several  purchasers.  What  wai 
the  effect  of  those  sales?  Having  given  notice  to  pay  the  loan 
in  November,  1860,  the  defendant  was  not  bound  to  keep  the 
pledge;  the  attempted  sale  of  the  20th  of  November  being 
inoperative,  and  the  plaintiff  continuing  in  default,  the  power 
to  sell  conferred  by  the  contract  still  continued,  and  was  in 
fact  executed  by  the  sales  made  in  1862.  As  we  have  already 
said,  no  further  notice  was  required  by  the  contract,  nor  can 
any  valid  objection  be  made  to  the  place  and  mode  of  sale, 
the  same  not  being  impeached  on  the  ground  of  unfairness  or 
bad  faith.  By  those  sales  the  bailment  was  ended;  and  being 
made,  as  we  have  said,  in  the  lawful  and  valid  exercise  of  the 
power  of  sale,  there  was  no  violation  of  the  contract  on  the 
part  of  the  defendant,  or  any  tortious  conversion  of  the  stock; 
and  therefore  the  plaintiff  was  not  entitled  to  recover  in  this 
form  of  action ;  and  the  fifth  prayer  of  the  defendant  ought  to 
have  been  granted. 

The  sales  and  transfer  of  the  stock  made  in  1862  being 
valid  and  legal,  the  plaintiff  would  have  the  right  to  recover 
in  an  action  ex  contractu  any  excess  which  might  remain  in 
the  hands  of  the  defendant  arising  from  the  proceeds  of  these 
sales,  including  the  dividend  received  on  the  16th  of  April, 
ISGl,  with  which  the  defendant  would  be  chargeable  after  de- 
ducting the  amount  of  the  loan  and  interest  due  at  that  time; 
such  excess  would  be  simply  money  had  and  received  by  the 
defendant  to  the  use  of  the  plaintiff,  under  and  in  conform- 
ity with  the  contract;  even  if  the  sales  had  been  tortious,  we 
entertain  the  opinion  that  the  true  measure  of  damages  would 
be  as  stated  in  the  defendant's  fourth  prayer,  which  asserts 
the  right  of  the  defendant  to  recoup  from  the  damages  the 
amount  of  the  debt;  but  that  question  does  not  arise  in  this 
case;  the  sales  not  being  tortious,  there  could  be  no  question 
of  the  right  of  the  defendant  to  retain  out  of  the  sums  which 
came  to  its  hands  the  amount  of  the  loan  and  interest;  and 
even  in  a  proper  form  of  action,  the  excess  only  could  be  re- 
covered. But  the  question  arising  upon  the  pleadings  is  not 
of  any  practical  importance  in  this  case,  because  it  is  evident 
from  a  simple  calculation  that  the  money  which  actually  came 
to  the  defendant's  hands  from  the  sales  of  the  stock  and  the 
dividend  of  April,  1861,  w^as  less  than  the  debt  and  interest 
due,  and  nothing,  therefore,  could  be  recovered  by  the  plaintiff 
in  any  form  of  action. 

The  conclusion  from  this  opinion  is,  that  there  was  no  error 

128 


MAEl'LAND  INSUEANCE  CO.  v.  DALRYMPLE.  §  32 

in  rejecting  the  plaintiff's  prayers,  and  the  first,  second,  third, 
and  fourth  prayers  of  the  defendant.  But  the  court  below 
erred  in  rejecting  the  fifth  prayer  of  the  defendant,  and  in  the 
instruction  given  to  the  jury;  the  judgment  will  therefore  be 
reversed  on  the  defendant's  appeal. 
Judgment  reversed. 


129 


B.    LOCATIO,  OR  HIRING. 
CHAPTER  VII. 

OF  LOCATIO  REI. 

33.     COBB  V.  WALLACE, 
5  Coldwell  (Tenn.)  539;  98  Am.  D.  435.    1868. 

Action  for  value  and  hire  of  a  barge  on  counts  for  breach 
of  contract  in  failing  to  redeliver,  for  negligence  in  keeping  and 
for  conversion  of  the  barge.    Verdict  for  defendants. 

By  Court,  Andrews,  J.  .  .  .  The  evidence  in  the  record 
tends  to  show  the  following  state  of  facts: — 

In  December,  1863,  the  plaintiffs'  barge  being  at  Hawesville, 
Kentucky,  a  place  on  the  Ohio  River,  and  having  then  on  board 
a  load  of  coal,  the  defendant  purchased  the  coal  from  the  plain- 
tiffs, and  at  the  same  time  hired  the  barge  at  the  rate  of  three 
dollars  per  day,  for  the  purpose  of  conveying  the  coal  to  Nash- 
ville. These  bargains  were  made  in  parol  between  the  defend- 
ant in  person  and  D.  Looney  &  Co.,  the  agents  of  the  plaintiffs. 
There  is  evidence  tending  to  prove  that  this  parol  contract  of 
hiring  was  that  the  defendant  should  employ  the  barge  to  con- 
vey said  load  of  coal  to  Nashville,  and  that  the  barge  should  be 
returned  to  the  plaintiff's,  at  Hawesville,  as .  soon  as  the  coal 
could  be  taken  to  Nashville  and  discharged,  and  that  no  author- 
ity was  given  to  defendant  to  use  the  barge  in  any  other  man- 
ner, or  for  any  other  purpose.  Soon  after  the  making  of  these 
contracts,  the  barge  with  its  cargo  of  coal  was  delivered  to  J. 
W.  Ross,  the  agent  of  the  defendant,  who  executed  and  delivered 
to  D.  Looney  &  Co.  the  following  receipt : — 

"Hawesville,  December  12,  1863, 
"Received  from  D.  Looney  &  Co.,  one  barge,  Aurora,  No.  8, 
containing  1,166  bushels  of  coal,  which  I  agree  to  pay  D.  Looney 
&  Co.,  at  Louisville,  at  the  rate  of  twenty  cents  per  bushel. 
And  I  further  agree  to  hire  said  barge,  Aurora,  No.  8,  and  pay 
D.  Looney  &  Co.  three  dollars  per  day  from  this  date  until  the 
barge  is  returned  at  Hawesville,  in  good  order. 

"  J.  W.  Ross,  agent  of  W.  B.  Wallace." 
130 


COBB  V.  WALLACE.  §  33 

The  barge  arrived  at  Nashville,  and  was  unloaded  early  in 
January,  1864.  The  defendant  then  retained  it,  and  for  some 
length  of  time  employed  it  in  the  business  of  transporting 
wood  upon  Stone  River.  Looney,  one  of  the  plaintiffs'  agents, 
called  upon  defendant  frequently,  both  by  letter  and  personal 
application,  for  the  return  of  the  barge,  within  six  weeks  of  the 
hiring,  and  frequently  after  that  time,  until  he  heard  of  its  seiz- 
ure, as  hereinafter  stated.  About  the  middle  of  April,  1864, 
the  defendant  sent  the  barge  from  Nashville  in  charge  of  his 
agent,  on  its  way  to  Hawesville,  for  the  purpose  of  delivering 
it  to  the  plaintiffs.  But  on  its  way  thither  the  barge  was  seized 
by  persons  in  the  military  service  of  the  United  States,  by 
what  authority  does  not  appear,  and  was  appropriated  to  the 
use  of  the  military  authorities,  and  has  never  been  recovered  or 
returned  to  the  plaintiff's. 

(After  deciding  that  parol  evidence  was  admissible  where  the 
original  contract  is  in  part  only  reduced  to  writing  and  the  parol 
evidence  does  not  contradict  or  vary  the  terms  of  the  written 
instrument.) 

But  we  think  that  the  circuit  judge  also  erred  in  his  con- 
struction of  the  writing  in  question,  even  if  we  were  compelled 
to  consider  it  as  the  only  evidence  of  a  contract  in  the  case. 
He  instructed  the  jury,  in  substance,  that  under  it  the  defend- 
ant had  it  at  his  option  to  say  when  the  contract  was  at  an 
end,  and  might  continue  to  use  the  barge  so  long  as  he  paid 
the  stipulated  hire;  and  that  the  contract  for  the  hire  would 
not  be  terminated  until  the  defendant  so  elected. 

In  cases  of  bailment,  where  the  contract  is  indefinite  as  to 
the  time  of  its  continuance,  the  bailee  has  not  the  arbitrary 
and  exclusive  right  to  determine  at  what  time  it  shall  termi- 
nate. If  the  bailment  is  for  an  explicitly  declared  purpose,  it 
terminates  whenever  that  purpose  is  accomplished.  If  the  time 
be  not  fixed  by  agreement,  or  by  the  nature  of  the  object  to  be 
accomplished,  then  the  bailee  must  return  the  property  when- 
ever called  upon,  after  a  reasonable  time;  and  what  time  is 
reasonable  must  be  determined  by  the  circumstances  of  each  par- 
ticular case:  2  Parsons  on  Contracts,  128,  129.  And  there- 
fore to  recur  again  to  a  question  already  discussed,  if  the  written 
contract  does  not  in  its  terms  specify  the  time  of  its  continu- 
ance, parol  evidence  becomes  necessary  in  order  to  enable  the 
jury  to  determine  what  length  of  time  is  reasonable  under  the 
circumstances. 

Still  another  objection  may  be  urged  against  the  charge  of 
the  circuit  judge  in  this  case.     The  jury  were  instructed,  in 

131 


§§  33.   34  OF  LOCATIO  KEI. 

substance,  that  the  fact  that  the  plaintiffs  had  written  letters 
to  the  defendant,  demanding  the  boat,  after  the  commission  of 
the  act  claimed  by  the  plaintiffs  as  a  conversion,  was  a  waiver 
of  the  conversion. 

We  are  not  aware  of  the  existence  of  such  a  doctrine.  If  the 
owner,  with  knowledge  of  the  facts  constituting  the  conversion, 
again  take  possession  of  the  property  converted,  as  owner,  this 
will  be  evidence  of  a  waiver  of  the  conversion :  Traynor  v.  John- 
son, 1  Head,  51.  But  we  know  of  no  case  where  it  is  held  that  a 
demand  on  the  part  of  the  owner  for  the  return  of  his  property, 
or  any  other  effort  made  by  him  for  its  recovery,  would  be  of 
itself  a  waiver  of  a  previous  conversion.  The  law  attaches  no 
such  penalty  to  attempts  by  the  owner  of  wrongfully  appro- 
priated property  to  recover  its  possession.  Demand  must  be 
made  in  a  large  class  of  cases  before  an  action  can  be  main- 
tained for  conversion.  Still  the  demand  and  refusal  do  not  in 
themselves  constitute  the  conversion,  but  are  only  the  evidence 
of  it:  2  Greenl.  Ev.,  sec.  644;  1  Chitty's  Pleading,  158.  And 
it  cannot  be  held  that  the  demand,  which  the  law  requires  to 
be  made  before  suit,  should  of  itself  operate  to  bar  the  right 
of  action.  If  the  defendant,  without  the  consent  of  the  plain- 
tiffs, and  in  violation  of  his  contract,  detained  the  barge,  and 
employed  it  in  a  different  place,  and  for  a  totally  dift'erent  pur- 
pose from  that  contemplated  by  the  contract,  the  jury  would 
have  been  authorized  to  find  him  guilty  of  a  conversion,  inde- 
pendently of  the  evidence  furnished  by  repeated  demand  for 
its  return,  and  the  defendant 's  refusal  to  return  it :  2  Greenl. 
Ev.,  sec.  642.  See  the  cases  in  Tennessee,  collected  in  1  Heis- 
kell's  Dig.,  237.  And  we  think  such  conversion  would  not  be 
waived  by  a  subsequent  demand  of  the  property. 

The  judgment  of  the  circuit  court  must  be  reversed,  and  the 
cause  remanded  for  a  new  trial. 


/  34.     SPOONER  V.  MANCHESTER. 
133  Mass.  270;  43  Am.  R.  514.    1882. 

Trover  for  a  hired  horse.    Judgment  for  plaintiff  below. 

Field,  J.  This  case  apparently  falls  within  the  decision  in 
Hall  V.  Corcoran,  107  Mass.  251 ;  9  Am.  Rep.  30,  except  that 
this  defendant  unintentionally  took  the  wrong  road  on  his 
return  from  Clinton  to  Worcester,  and  when  after  traveling  on 
it  five  or  six  miles,  he  discovered  his  mistake,  he  intentionally 

132 


SPOONER  V.  MANCHESTER.  §  34 

took  what  he  considered  the  best  way  back  to  Worcester,  which 
was  by  a  circuit  through  Northborough. 

The  case  has  been  argued  as  if  it  were  an  action  of  tort  in  the 
nature  of  trover,  and  although  the  declaration  is  not  strictly  in 
the  proper  form  for  such  an  action,  both  parties  desire  that  it 
should  be  treated  as  if  it  were,  and  we  shall  so  consider  it. 

As  the  horse  was  hired  and  used  on  Sunday,  and  it  does  not 
appear  that  this  was  done  from  necessity  or  charity,  and  also 
as  it  does  not  appear  that  the  horse  was  injured  in  consequence 
of  any  want  of  due  care  on  the  part  of  the  defendant,  or  that 
the  defendant  was  not  in  the  exercise  of  ordinary  care  when 
he  lost  his  way,  the  question  whether  the  acts  of  the  defendant 
amounted  to  a  conversion  of  the  horse  to  his  own  use  is  vital. 
The  distinction  between  acts  of  trespass,  acts  of  misfeasance 
and  acts  of  conversion  is  often  a  substantial  one.  In  actions  in 
the  nature  of  trespass  or  case  for  misfeasance,  the  plaintiff  re- 
covers only  the  damages  which  he  has  suffered  by  reason  of 
the  wrongful  acts  of  the  defendant ;  but  in  actions  in  the  nature 
of  trover,  the  general  rule  of  damages  is  the  value  of  the  prop- 
erty at  the  time  of  the  conversion,  diminished  when  as  in  this 
case  the  property  has  been  returned  to  and  received  by  the 
owner  by  the  value  of  the  property  at  the  time  it  was  returned, 
so  that  after  the  conversion  and  until  the  delivery  to  the  owner 
the  property  is  absolutely  at  the  risk  of  the  person  who  has 
converted  it,  and  he  is  liable  to  pay  for  any  depreciation  in 
value,  whether  that  depreciation  has  been  occasioned  by  his 
negligence  or  fault,  or  by  the  negligence  or  fault  of  any  other 
person,  or  by  inevitable  accident  or  the  act  of  God.  Perham  v. 
Coney,  117  Mass.  102. 

The  satisfaction  by  the  defendant  of  a  judgment  obtained  for 
the  full  value  of  the  property  vests  the  title  to  the  property 
in  him  by  relation  as  of  the  time  of  the  conversion.  Conversion 
is  based  upon  the  idea  of  an  assumption  by  the  defendant  of 
a  right  of  property  or  a  right  of  dominion  over  the  thing  con- 
verted, which  casts  upon  him  all  the  risks  of  an  owner,  and  it  is 
therefore  not  every  wrongful  intermeddling  with,  or  wrongful 
asportation  or  wrongful  detention  of  personal  property,  that 
amounts  to  a  conversion.  Acts  which  themselves  imply  an  asser- 
tion of  title  or  of  a  right  of  dominion  over  personal  property, 
such  as  a  sale,  letting  or  destruction  of  it,  amount  to  a  conver- 
sion, even  although  the  defendant  may  have  honestly  mistaken 
his  rights;  but  acts  which  do  not  in  themselves  imply  an  asser- 
tion of  title,  or  of  a  right  of  dominion  over  such  property,  will 
not  sustain  an  action  of  trover,  unless  done  with  the  intention 

133 


§  34  OF  LOCATIO  KEI. 

to  deprive  the  owner  of  it  permanently  or  temporarily,  or  unless 
there  has  been  a  demand  for  the  property  and  a  neglect  or  refusal 
to  deliver  it,  which  are  evidence  of  a  conversion,  because  they 
are  evidence  that  the  defendant  in  withholding  it  claims  the 
right  to  withhold  it,  which  is  a  claim  of  a  right  of  dominion 
over  it. 

In  Spooner  v.  Holmes,  102  Mass.  503;  3  Am.  Rep.  491, 
Mr.  Justice  Gray  says  that  the  action  of  trover  "cannot  be 
maintained  without  proof  that  the  defendant  either  did  some 
positive  wrongful  act  with  the  intention  to  appropriate  the 
property  to  himself  or  to  deprive  the  rightful  owner  of  it,  or 
destroyed  the  property,"  and  the  authorities  are  there  cited. 
Fouldes  V.  Willoughby,  8  M.  &  W.  540,  is  a  leading  case,  estab- 
lishing the  necessity  in  order  to  constitute  a  conversion,  of  prov- 
ing an  intention  to  exercise  some  right  or  control  over  the  prop- 
erty inconsistent  with  the  right  of  the  lawful  owner,  when  the 
act  done  is  equivocal  in  its  nature.  See  also  Simmons  v.  Lilly- 
stone,  8  Exch.  431 ;  Wilson  v.  McLaughlin,  107  Mass.  587. 

It  is  argued  that  the  act  of  the  defendant  in  this  case  was  a 
user  of  the  horse  for  his  own  benefit,  inconsistent  with  the  terms 
of  the  bailment,  and  that  the  defendant's  mistake  in  taking  the 
wrong  road  was  immaterial,  and  these  cases  are  cited :  Wheelock 
V.  Wheelwright,  5  Mass.  104;  Homer  v.  Thwing,  3  Pick.  492; 
Lucas  V.  Trumbull,  15  Gray,  306 ;  Hall  v.  Corcoran,  uhi  supra. 
In  each  of  these  cases,  there  was  an  intentional  act  of  dominion 
exercised  over  the  horse  hired,  inconsistent  with  the  right  of  the 
owner. 

In  Wellington  v.  Wentworth,  8  Mete.  548,  a  cow,  going  at 
large  in  the  highway  without  a  keeper,  joined  a  drove  of  cattle, 
in  May  or  June,  1842,  without  the  loiowledge  of  the  owner  of 
the  drove,  and  was  driven  into  New  Hampshire  and  pastured 
there,  during  the  season  with  the  defendant's  cattle,  and  in  the 
autumn  returned  with  the  drove  and  was  delivered  to  the  plain- 
tiff; and  it  was  held  that  there  was  no  conversion.  Chief  Jus- 
tice Shaw  says,  however,  that  "it  was  the  plaintiff's  own  fault 
that  his  cow  was  at  large  in  the  highway,  and  entered  the  de- 
fendant's drove."  Yet  if  the  defendant  had  driven  the  cow 
to  New  Hampshire  and  pastured  her  there  with  his  cattle,  know- 
ing that  she  belonged  to  the  plaintiff  and  intending  to  deprive 
him  of  her,  there  can  be  no  doubt  that  it  would  have  been  a 
conversion. 

Parker  v.  Lombard,  100  Mass.  405,  and  Loring  v.  Mulcahy, 
3  Allen,  575,  were  both  decided  upon  the  ground  that  the  de- 

134 


SPOONEE  V.   MANCHESTER.  §  34 

fendant  either  assumed  to  dispose  of  the  property  as  his  own, 
or  intended  to  withhold  the  property  from  the  plaintiff. 

Nelson  v.  Whetmore,  1  Rich.  318,  was  an  action  of  trover  for 
the  conversion  of  a  slave,  who  was  travelling  as  free  in  a  public 
conveyance,  and  was  taken  as  a  servant  by  the  defendant;  and 
the  decision  was,  that  to  constitute  a  conversion  the  defendant 
must  have  kno^^^l  that  he  was  a  slave. 

In  Gilmore  v.  Newton,  9  Allen,  171,  85  Am.  D.  749,  the  de- 
fendant not  only  exercised  dominion  over  the  horse,  by  holding 
him  as  a  horse  to  which  he  had  the  title  by  purchase,  but  also 
by  letting  him  to  a  third  person.  The  defendant  actually  in- 
tended to  treat  the  horse  as  his  own. 

If  a  person  wrongfully  exercises  acts  of  ownership  or  of  do- 
minion over  property  under  a  mistaken  view  of  his  rights,  the 
tort,  notwithstanding  his  mistake,  may  still  be  a  conversion,  be- 
cause he  has  both  claimed  and  exercised  over  it  the  rights  of  an 
owner;  but  whether  an  act  involving  the  temporary  use,  con- 
trol or  detention  of  property  implies  an  assertion  of  a  right  of 
dominion  over  it,  may  well  depend  upon  the  circumstances  of 
the  case  and  the  intention  of  the  person  dealing  with  the  prop- 
erty. Fouldes  V.  Willoughby,  ithi  supra;  "Wilson  v.  IMcLaughlin, 
ul)i  supra;  Nelson  v.  Merriam,  4  Pick.  249;  Houghton  v.  But- 
ler, 4  T.  R.  364 ;  Heald  v.  Carey,  11  C.  B.  977. 

In  the  case  at  bar,  the  use  made  of  the  horse  by  the  defendant 
was  not  of  a  different  kind  from  that  contemplated  by  the  con- 
tract between  the  parties,  but  the  horse  was  driven  by  the  de- 
fendant, on  his  return  to  "Worcester  a  longer  distance  than  was 
contemplated,  and  on  a  different  road.  If  it  be  said  that  the  de- 
fendant intended  to  drive  the  horse  w^here  in  fact  he  did  drive 
him,  yet  he  did  not  intend  to  violate  his  contract  or  to  exercise 
any  control  over  the  horse  inconsistent  with  it.  There  is  no  evi- 
dence that  the  defendant  was  not  at  all  times  intending  to  re- 
turn the  horse  to  the  plaintiff  according  to  his  contract,  or  that 
wliatever  he  did  was  not  done  for  that  purpose,  or  that  he  ever 
intended  to  assume  any  control  or  dominion  over  the  horse 
against  the  rights  of  the  owner.  After  he  discovered  that  he 
had  taken  the  wrong  road,  he  did  what  seemed  best  to  him  in 
order  to  return  to  "Worcester.  Such  acts  cannot  be  considered 
a  conversion. 

Whether  a  person  who  hires  a  horse  to  drive  from  one  place 
to  another  is  not  bound  to  know  or  ascertain  the  roads  usually 
travelled  between  the  places,  and  is  not  liable  for  all  damages 
proximately  caused  by  any  deviation  from  the  usual  ways,  need 
not  be  considered. 

135 


§§  34,  35  OF  LOCATIO  EEI. 

An  action  on  the  case  for  driving  a  horse  beyond  the  place 
to  which  he  was  hired  to  go,  was  apparently  known  to  the 
common  law  a  long  time  before  the  declaration  in  trover  was  in- 
vented.   21  Edw.  IV,  75,  pi.  9. 

Exceptions  sustained. 


'i  35.     DAVIS  V.  GARRETT, 
6  Bingham  716;  19  E.  C.  L.  321.     1830. 

Action  for  the  value  of  a  barge  of  lime  lost  in  a  storm  at 
sea.     Verdict  for  plaintiff. 

TiNDALL,  C,  J.  There  are  two  points  for  the  determination 
of  the  court  upon  this  rule ;  first,  whether  the  damage  sustained 
by  the  plaintiff  was  so  proximate  to  the  wrongful  act  of  the 
defendant  as  to  form  the  subject  of  an  action;  and,  secondly, 
whether  the  declaration  is  sufficient  to  support  the  judgment  of 
the  Court  for  the  plaintiff. 

As  to  the  first  point,  it  appeared  upon  the  evidence  that  the 
master  of  the  defendant's  barge  had  deviated  from  the  usual 
and  customary  course  of  the  voyage  mentioned  in  the  declaration 
without  any  justifiable  cause ;  and  that  afterwards,  and  whilst 
such  barge  was  out  of  her  course,  in  consequence  of  stormy 
and  tempestuous  weather,  the  sea  communicated  with  the  lime, 
which  thereby  became  heated,  and  the  barge  caught  fire,  and  the 
master  was  compelled  for  the  preservation  of  himself  and  the 
crew  to  run  the  barge  on  shore,  where  both  the  lime  and  the 
barge  were  entirely  lost. 

Now  the  first  objection  on  the  part  of  the  defendant  is  not 
rested,  as  indeed  it  could  not  be  rested,  on  the  particular  cir- 
cumstances which  accompanied  the  destruction  of  the  barge; 
for  it  is  obvious,  that  the  legal  consequences  must  be  the  same, 
whether  the  loss  was  immediately,  by  the  sinking  of  the  barge 
at  once  by  a  heavy  sea,  when  she  was  out  of  her  direct  and 
usual  course,  or  whether  it  happened  at  the  same  place,  not  in 
consequence  of  an  immediate  death's  wound,  but  by  a  connected 
chain  of  causes  producing  the  same  ultimate  event.  It  is  only  a 
variation  in  the  precise  mode  by  which  the  vessel  was  destroyed, 
which  variation  will  necessarily  occur  in  each  individual  case. 

But  the  objection  taken  is,  that  there  is  no  natural  or  neces- 
sary connection  between  the  wrong  of  the  master  in  taking  the 
barge  out  of  its  proper  course,  and  the  loss  itself;  for  that  the 

136 


DAVIS  V.  GAKKETT.  §  35 

same  loss  might  have  been  occasioned  by  the  very  same  tempest, 
if  the  barge  had  proceeded  in  her  direct  course. 

But  if  this  argument  were  to  prevail,  the  deviation  of  the 
master,  which  is  undoubtedly  a  ground  of  action  against  the 
owner,  would  never,  or  only  under  very  peculiar  circumstances, 
entitle  the  plaintiff  to  recover.  For  if  a  ship  is  captured  in  the 
course  of  deviation,  no  one  can  be  certain  that  she  might  not  have 
been  captured  if  in  her  proper  course.  And  yet,  in  Parker  v. 
James,  4  Camp.  112,  where  the  ship  was  captured  whilst  in  the 
act  of  deviation,  no  such  ground  of  defense  was  even  suggested. 
Or,  again,  if  the  ship  strikes  against  a  rock,  or  perishes  by  storm 
in  the  one  course,  no  one  can  predicate  that  she  might  not  equally 
have  struck  upon  another  rock,  or  met  with  the  same  or  another 
storm,  if  pursuing  her  right  and  ordinary  voyage. 

The  same  answer  might  be  attempted  to  an  action  against  a 
defendant  who  had,  by  mistake,  forwarded  a  parcel  by  the 
wrong  conveyance,  and  a  loss  had  thereby  ensued;  and  yet  the 
defendant  in  that  case  would  undoubtedly  be  liable. 

But  we  think  the  real  answer  to  the  objection  is,  that  no 
wrong-doer  can  be  allowed  to  apportion  or  qualify  his  own  wrong ; 
and  that  as  a  loss  has  actually  happened  whilst  his  wrongful 
act  was  in  operation  and  force,  and  which  is  attributable  to 
his  wrongful  act,  he  cannot  set  up  as  an  answer  to  the  action 
the  bare  possibility  of  a  loss,  if  his  wrongful  act  had  never  been 
done.  It  might  admit  of  a  different  construction  if  he  could 
show,  not  only  that  the  same  loss  might  have  happened,  but  that 
it  must  have  happened  if  the  act  complained  of  had  not  been 
done ;  but  there  is  no  evidence  to  that  extent  in  the  present  case. 

(Omitting  a  question  of  practice.)  Judgment  for  plaintiff. 
Rule  for  new  trial  and  for  arrest  of  judgment  discharged.  /" 


1ST 


CHAPTER  VIII. 

OF  LOCATIO  OPERIS. 

36.     SICKELS  V.  PATTISON, 

U  Wend.  (N.  Y.)  257;  28  Am.  D.  527.     1835. 

Action  for  services  in  transporting  lumber.  Defendant  set 
up  damage  due  to  plaintiff's  failure  to  fully  perform  the  con- 
tract. Judgment  for  defendants  for  $34.94.  Plaintiffs  bring 
error. 

By  Court,  Nelson,  J.  The  testimony  of  Richards  was  suffi- 
cient proof  of  the  contract  between  the  plaintiffs  and  the  de- 
fendant, as  to  the  transportation  of  the  lumber  to  market,  to 
justify  the  court  in  submitting  the  fact  to  the  jury.  When  the 
plaintiffs  purchased  the  boats,  they  agreed  to  assume  the  contracts 
made  by  Richards,  one  of  which  was  with  the  defendant ;  and 
they  afterwards  admitted  that  they  had  renewed  them  with  the 
persons  concerned. 

The  charge,  however,  of  the  court  to  the  jury  was  erroneous. 
It  assumed  the  principle,  that  if  the  contract  was  entire  and 
not  fulfilled  by  the  plaintiff's,  they  were  not  only  bound  to  re- 
fund the  amount  paid  towards  freight,  but  were  also  liable  to 
damages  for  the  non-fulfillment.  The  defendant  having  paid 
thirty  dollars  towards  the  transportation  of  the  lumber,  a  sub- 
sequent failure  to  perform  the  whole  contract  would  not  entitle 
him  to  recover  it  back;  for  if  he  undertook  to  recover  back  the 
amount  paid,  under  the  idea  of  a  rescindment  of  the  contract, 
he  would  be  met  by  the  equity  growing  out  of  the  services 
actually  rendered,  and  which  should  be  taken  into  consideration 
in  adjusting  the  rights  of  the  parties.  The  true  remedy  in  such 
a  case  is  an  action  for  damages  for  the  violation  of  the  agree- 
ment; or,  as  in  this  case,  the  defendant  may,  if  he  chooses,  set 
up  the  breach  and  claim  damages,  for  the  purpose  of  diminish- 
ing or  even  extinguishing  any  amount  which  the  plaintiffs  seek 
to  recover  for  the  freight  of  the  lumber. 

It  is  true,  if  the  contract  was  entire,  a  failure  to  perform 
would  of  itself  be  an  answer  to  a  recovery  for  the  remainder 
of  the  freight  money,  as  the  plaintiffs  could  not  maintain  an 

138 


SENSENBEENNER  v.  MATTHEWS.  §§  36,  37 

action  upon  such  a  contract,  after  they  had  broken  it.  The  com- 
pensation in  this  case,  I  am  inclined  to  think,  did  not  depend 
upon  the  transportation  of  all  the  lumber.  The  stipulation  was 
for  a  fixed  sum  for  one  thousand  pieces,  and  no  time  of  pay- 
ment was  mentioned.  In  contemplation  of  law  it  would  prob- 
ably be  due  on  the  delivery  of  the  lumber  at  market.  The 
delivery  of  the  whole  lumber  at  market  was  not  a  condition 
precedent  to  the  payment  of  the  freight.  It  would  become  due, 
and  be  demandable  as  fast  as  delivered.  If  so,  the  plaintiffs 
would  be  entitled  to  prosecute  for  the  freight  of  the  quantity 
delivered.  If  the  jury  were  satisfied  that  by  the  contract  the 
whole  that  was  ready  to  be  transported  to  market  by  the  canal 
could  have  been  carried,  then  the  defendant  would  be  entitled  to 
damages ;  and  it  would  be  proper  to  prove  them,  with  the  view 
of  reducing  the  amount  claimed,  or  even  extinguishing  it,  if 
the  damages  were  large  enough  to  cover  it:  8  Wend.  109.  As  to 
the  charge  for  the  use  of  the  landing,  the  testimony  is  not  very 
clear  upon  the  point.  It  would  seem,  from  the  testimony  of 
Richards,  that  he  was  to  charge  nothing  for  the  use  of  his  land- 
ing for  the  lumber  of  the  persons  with  whom  he  contracted; 
and  if  so,  it  necessarily  follows,  from  the  evidence,  that  the 
plaintiffs  are  not  entitled  to  make  any  charge,  as  they  took  his 
place.  This,  however,  is  a  question  of  fact  for  the  jury  to  de- 
termine. 

Judgment  reversed,  and  venire  de  novo. 


yC  37.     SENSENBEENNER  V.  MATTHEWS, 

48  Wis.  250;  3  N.  W.  B.  599;  33  Am.  R.  809.     1879. 

Replevin  by  plaintiff  against  Matthews,  a  deputy  sheriff,  for 
a  buggy  taken  under  a  writ  of  replevin  secured  by  one  Henry. 
Plaintiff  owned  a  building,  part  of  which  he  occupied  with  a 
blacksmith  shop.  Another  part  he  leased  to  Schweitzer  &  Co. 
as  a  wagon  shop,  who  in  turn  sublet  the  second  story  to  Max- 
well for  a  paint  shop.  This  was  connected  with  the  blacksmith 
shop  by  a  trap  door  through  which  Maxwell  had  the  right  to 
take  and  return  articles  for  painting.  Maxwell  employed 
Schweitzer  &  Co.  to  do  the  wood  work  and  Sensenbrenner  to  do 
the  iron  work  on  the  buggy,  after  the  completion  of  which  he 
removed  it  to  his  shop,  painted  it,  and  sold  it  to  Henry.  Plaintiff 
forbade  its  removal  until  Maxwell  should  settle  with  him  for  the 
iron  work,  but  Matthews  and  Henry,  by  virtue  of  a  writ  of 

139 


§§  37,  38  OF  LOCATIO  OPEKIS. 

replevin,  peaceably  removed  the  buggy  from  the  shop  in  the 
plaintiff's  absence.     Judgment  for  defendant. 

Ryan,  C.  J.  The  shops  of  the  appellant,  Schweitzer  and  Max- 
well, although  in  the  same  building,  were  held  by  them  respec- 
tively in  severalty;  and  the  right  of  way  of  Maxwell,  although 
passing  through  the  shops  of  the  appellant  or  Schweitzer,  was 
part  of  his  holding  and  used  by  him  of  his  own  right. 

The  buggy  belonging  to  ]\Iaxwell  was  delivered  to  him  through 
the  right  of  way  by  the  appellant,  after  it  had  been  ironed  by  the 
latter.  It  was  delivered  with  the  expectation  that  it  should  be 
painted  by  Maxwell;  but  Maxwell  owed  no  duty,  either  to 
Schweitzer  or  the  appellant,  to  paint  it.  The  delivery  was  un- 
conditional, and  the  buggy  must  be  taken  to  have  been  delivered 
to  Maxwell  in  his  right  as  owner  of  it. 

This  delivery  operated  as  an  absolute  waiver  of  all  lien  of  tli.e 
appellant  for  ironing  the  buggy.  The  essence  of  lien^  in  such 
cases,  is  possession.  Lien  cannot  survive  possession ;  and  except 
in  case  of  fraud,  and  perhaps  mistake,  such  a  lien  cannot  be 
restored  by  resumption  of  possession.  "Lien  is  a  right  to  hold 
possession  of  another's  property  for  the  satisfaction  of  some 
charge  attached  to  it.  The  essence  of  the  right  is  possession; 
and  whether  that  possession  be  of  officers  of  the  law  or  of  the 
person  who  claims  the  right  of  lien,  the  chattel  on  which  the 
lien  attaches  is  equally  regarded  as  in  the  custody  of  the  law. 
Lien  is  neither  a  jus  ad  rem  nor  a  jus  in  re,  but  a  simple  right 
of  retainer."    3  Pars,  on  Cont.  234. 

I  "The  voluntary  parting  with  the  possesion  of  the  goods  will 
lamount  to  a  waiver  or  surrender  of  a  lien;  for  as  it  is  a  right 
('founded  upon  possession,  it  must  ordinarily  cease  when  the  pos- 
(session  ceases. ' '    Story  on  Agency,  sec.  367. 

As  this  disposes  of  the  lien  set  up  by  the  appellant  to  support 
this  action,  it  is  immaterial  how  the  respondents  came  into  pos- 
session. In  replevin,  a  plaintiff  recovers  on  his  own  right  of  pos- 
session, not  on  the  weakness  of  the  defendant's  right. 

By  the  Court. — The  judgment  of  the  court  below  is  affirmed. 
Judgment  affirmed. 


-/  38.     SMALL  V.  ROBINSON, 

69  Me.  425;  31  Am.  R.  299.     1879. 

Appleton,  Ch.  J.  This  is  an  action  of  replevin  for  a  pair  of 
wheels  and  other  parts  of  a  hack,  upon  which  the  defendant 
claims  a  lien,  by  reason  of  work  done  by  him  upon  them. 

140 


WILLIAMS  V.  ALLSUP.  §§  38,  39 

The  plaintiff  is  the  owner  of  the  hack.  It  was  left  for  repairs 
by  one  Staples,  who  was  in  possession  under  a  contract  of  pur- 
chase, the  terms  of  which  were  unperformed.  The  defendant 
was  aware  of  the  plaintiff's  title.  The  presiding  justice  found 
that  the  plaintiff  had  never  given  Staples  any  authority  to  sub- 
ject the  hack  to  a  lien  for  repairs,  and  ruled  that  no  such  au- 
thority was  to  be  implied  as  a  matter  of  law,  from  the  relation 
of  the  parties. 

"A  lien,"  observes  Shaw,  Ch.  J.,  in  Hollingsworth  v.  Dow,  19 
Pick.  228,  "is  a  proprietary  interest,  a  qualified  ownership,  and 
in  general,  can  only  be  created  by  the  owner,  or  by  some  person 
by  him  authorized."  Here  the  fact  of  authority  is  negatived. 
The  plaintiff'  never  became  the  debtor  of  the  defendant,  and 
never  authorized  the  imposition  of  any  lien  on  his  property. 
Globe  Works  V.  Wright,  106  Mass.  207,  A  mortgagor  of  horses 
cannot,  without  the  knowledge,  acquiescence  and  consent  of  the 
mortgagee,  intrust  the  horses  to  be  boarded  so  as  to  subject 
them  to  a  lien  for  keeping,  as  against  the  mortgagee.  Sargent  v. 
Usher,  55  N.  H.  287 ;  20  Am.  Rep.  208.  Gushing,  Gh.  J.,  in  the 
case  last  cited,  says:  *'I  have  seen  no  case  in  which  it  has  been 
held  that  a  party  who  permits  another  to  have  possession  of  his 
personal  property,  by  so  doing  in  law,  constitutes  that  other  his 
agent  to  sell  or  pledge  the  property."  So  a  bailee  can  give  no 
lien  upon  property  bailed,  as  against  the  owner.  Gilson  v. 
Gwinn,  107  Mass.  126,  9  Am.  R.  13. 

The  defendant  could  acquire  no  title  from  Staples,  when  he 
had  none.  ■    .  • 

The  exceptional  case  of  the  inn-keeper  rests  upon  the  principle 
that  as  he  is  by  law  bound  to  receive  a  guest  and  his  goods,  and 
might  be  liable  to  indictment  for  not  so  receiving  them,  he  shall 
have  a  lien  on  such  goods  as  he  is  bound  to  receive_  whether 
owned  by  his  guest  or  not. 

Exceptions  overruled. 


39.    WILLIAMS  V.  ALLSUP, 

10  C.  B.  (N.  S.)  417;  100  E.  C.  L.  417.  1861. 

Action  for  the  value  of  a  steamboat. 

Erle,  G.  J.  This  is  an  action  by  the  mortgagee  of  a  steam- 
vessel  against  a  shipwright  who  had  done  certain  repairs  on  the 
vessel  at  the  request  of  the  mortgagor,  who  had  been  allowed  to 
be  in  the  possession  and  apparent  ownership.     The  defendant 

141 


§  39  OF  LOCATIO  OPEEIS. 

claims  a  lien  upon  the  ship  for  the  price  of  these  repairs ;  and  I 
am  of  the  opinion  that  the  claim  is  well  founded.  There  is,  it 
seems,  no  authority  to  be  found  bearing  upon  the  question, 
though  I  presume  it  must  have  arisen  many  times.  I  should 
rather  expect  that  it  had  never  been  made  the  subject  of  liti- 
gation because  the  right  of  a  lien  has  always  been  admitted  to 
attach.  I  put  my  decision  on  the  ground  suggested  by  Mr. 
Mellish,  viz.,  that  the  mortgagee  having  allowed  the  mortgagor 
to  continue  in  the  apparent  ownership  of  the  vessel,  making  it 
a  source  of  profit  and  a  means  of  earning  wherewithal  to  pay 
off  the  mortgage-debt,  the  relation  so  created  by  implication 
entitles  the  mortgagor  to  do  all  that  may  be  necessary  to  keep 
her  in  an  efficient  state  for  that  purpose.  The  case  states  that 
the  vessel  had  been  condemned  as  unseaworthy  by  the  govern- 
ment surveyor,  and  so  was  in  a  condition  to  be  utterly  unable 
to  earn  freight  or  be  an  available  security  or  any  source  of  profit 
at  all.  Under  these  circumstances,  the  mortgagor  did  that  which 
was  obviously  for  the  advantage  of  all  parties  interested  :  he  puts 
her  into  the  hands  of  the  defendant  to  be  repaired;  and,  ac- 
cording to  all  ordinary  usage,  the  defendant  ought  to  have  a 
right  of  lien  upon  the  ship,  so  that  those  who  are  interested  in 
the  ship,  and  who  will  be  benefited  by  the  repairs,  should  not 
be  allowed  to  take  her  out  of  his  hands  without  paying  for  them. 
The  70th  section  of  the  Merchant  Shipping  Act,  17  &  18  Vict.  c. 
104,  does  not  appear  to  me  at  all  to  interfere  with  this  view.  It 
does  not  to  my  mind  establish  the  right  of  the  mortgagee  to  the 
possession  of  the  ship,  or  negative  the  lien  of  the  person  doing 
the  repairs.  That  section  enacts  that  ''a  mortgagee  shall  not 
by  reason  of  his  mortgage  be  deemed  to  be  the  owner  of  a  ship 
or  any  share  therein,  nor  shall  the  mortgagor  be  deemed  to  have 
ceased  to  be  the  owner  of  such  mortgaged  ship  or  share,  except 
in  so  far  as  may  be  necessary  for  making  such  ship  or  share 
available  as  a  security  for  the  mortgage-debt."  The  implica- 
tion upon  which  I  found  my  judgment  is  quite  consistent  with 
that  provision.  The  vessel  has  been  kept  in  a  state  to  be  avail- 
able as  a  security  to  the  mortgagee,  by  her  destruction  being  pre- 
vented by  the  repairs  which  the  defendant  has  done  to  her.  I 
think  there  is  nothing  in  the  92d  section  to  affect  this  question. 
There  is,  no  doubt,  some  difficulty  in  the  case.  But  it  is  to  be 
observed  that  the  money  expended  in  repairs  adds  to  the  value  of 
the  ship ;  and,  looking  to  the  rights  and  interests  of  the  parties 
generally,  it  cannot  be  doubted  that  it  is  much  to  the  advantage 
of  the  mortgagee  that  the  mortgagor  should  be  held  to  have 
power  to  confer  a  right  of  lien  upon  the  ship  for  repairs  neces- 

142 


GEINNELL    v.   COOK.  §§  39,  40 

sary  to  keep  her  seaworthy.     For  these  reasons,  I  am  of  the 
opinion  that  the  defendant  is  entitled  to  judgment. 

(WiLLES,  J.,  and  Byles,  J.,  rendered  concurring  opinions.) 

Judgment  for  the  defendant. 


;^40.     GRINNELL  V.  COOK, 

3  Hill  (N.  Y.)  485;  38  Am.  D.  663.     1842. 

Case,  to  recover  the  value  of  horses  taken  and  sold  by  Cook, 
a  deputy  sheriff,  under  a  writ  against  their  owner,  Tyler.  Grin- 
nell,  an  inn-keeper,  claimed  a  lien  for  boarding  the  horses  five 
weeks  in  his  stable.    Writ  of  error  from  a  non-suit  of  plaintiff. 

By  Court,  Bronson,  J.  It  is  said  that  Martin  proves  an  ex- 
press promise  to  pay  for  the  keeping  of  the  horses.  If  that  were 
so,  it  would  not  aid  the-  plaintiff'  in  this  action.  This  is  not 
assumpsit,  but  an  action  on  the  case  where  the  plaintiff  seeks  to 
recover  on  the  ground  of  a  lien.  And  besides,  Martin  was  not 
the  agent  of  the  plaintiff,  and  what  the  defendant  said  to  him 
seems  not  to  have  been  intended  for  the  plaintiff,  but  for  Shel- 
don, who  had  receipted  the  horses  to  the  constable.  The  con- 
versation was  not  communicated  to  the  plaintiff,  and  he  will 
never  be  able  to  make  anything  out  of  it:  Stafford  v.  Bacon, 
1  Hill,  532  [37  Am.  Dec.  366],  certainly  not  in  this  action. 

The  innkeeper  is  bound  to  receive  and  entertain  travelers,  and 
is  answerable  for  the  goods  of  the  guest  although  they  may  be 
stolen  or  otherwise  lost  without  any  fault  on  his  part.  Like  a 
common  carrier,  he  is  an  insurer  of  the  property,  and  nothing 
but  the  act  of  God  or  public  enemies  will  excuse  a  loss.  On 
account  of  this  extraordinary  liability  the  law  gives  the  innkeeper 
a^lien_on  _th^  goods  of  the^guest  for  the  satisfaction  of  his  rea=.. 
sonable  j;harges.^  It  was  once  held  that  he  might  detain  the  per- 
son of  a  guest,  but  that  doctrine  is  now  exploded,  and  the  lien 
is  confined  to  the  goods.  The  inquiry  then  is,  whether  the 
plaintiff  received  and  kept  the  horses  as  an  innkeeper.  In  other 
words,  was  he  bound  to  receive  and  take  care  of  them,  and  would 
he  have  been  answerable  for  the  loss  if  the  horses  had  been 
stolen  without  any  negligence  on  his  part?  The  lien  and  the 
liability  must  stand  or  fall  together.  Innkeepers  can  not  claim 
the  one  with  any  just  expectation  of  escaping  the  other. 

Tyler,  who  owned  the  property,  was  not  a  traveler,  nor  was  he 
in  any  sense  a  guest  in  the  plaintiff 's  house ;  and  I  think  it  quite 

143 


§  40  OF  LOCATIO  OPEEIS. 

clear  that  the  plaintiff  was  not  bound  to  receive  and  take  care  of 
the  horses.  We  are  referred  to  the  case  of  Peet  v.  McGraw,  25 
Wend.  653,  to  prove  that  it  is  not  necessary  to  the  lien,  or  the 
liability  of  the  innkeeper,  that  the  owner  should  be  a  guest. 
The  case  decides  no  such  thing.  It  turned  on  the  construction 
of  the  plea,  and  we  thought  the  words  of  the  plea  equivalent  to 
an  averment  that  the  owner  was  a  guest.  A  single  expression 
of  the  chief  justice,  which  was  not  necessary  to  the  decision  of 
the  cause,  is  separated  from  the  context,  and  pressed  into  the 
plaintiff's  service.  But  neither  the  chief  justice  nor  any  other 
member  of  the  court  intended  to  say,  that  either  the  lien  or  the 
liability  could  exist  where  the  owner  of  the  goods  was  not  either 
actually  or  constructively  the  guest  of  the  innkeeper.  There 
must  be  such  a  relation ;  but  it  is  not  necessary  to  its  existence 
that  the  owner  of  the  goods  should  be  actually  infra  hospitium 
at  the  time  the  loss  happened,  or  the  lien  accrued.  For  example, 
if  a  traveler  leave  his  horse  at  the  inn,  and  then  go  out  to 
dine  or  lodge  with  a  friend,  he  does  not  thereby  cease  to  be  a 
guest,  and  the  rights  and  liabilities  of  the  parties  remain  the 
same  as  though  the  traveler  had  not  left  the  inn.  And  if  the 
owner  leave  the  inn  and  go  to  another  town,  intending  to  be 
absent  two  or  three  days,  it  seems  that  the  same  rule  holds 
good,  so  far  as  relates  to  property  for  the  care  and  keeping  of 
which  the  host  is  to  receive  a  compensation;  but  it  is  otherwise 
in  relation  to  inanimate  property  from  which  the  host  derives  no 
advantage,  and  if  that  be  stolen  during  such  absence  of  the 
guest,  the  innkeeper  will  not  be  answerable :  Gelley  V.  Clerk, 
Cro.  Jac.  188;  Noy,  126;  Yorke  v.  Grenaugh,  2  Ld.  Raym. 
866;  1  Salk.  388,  by  the  name  of  York  v.  Grindstone;  Bac. 
Abr.,  Inns  and  Innkeepers  (C),  5,  7th  Lond.  ed.  The  case 
of  Mason  v.  Thompson,  9  Pick.  280  [20  Am.  Dec.  471],  goes  still 
further.  There  the  traveler  never  went  to  the  inn,  but  stopped 
as  a  visitor  with  a  friend,  and  sent  her  horse  and  carriage  to  the 
inn.  After  four  days  she  sent  for  the  property,  and  found  that 
a  part  of  it  had  been  stolen;  but  still  the  innkeeper  was  held 
liable.  This  ease  rests  on  the  dictum  of  Powell  and  Gould,  JJ., 
against  the  opinion  of  Lord  Holt,  in  Yorke  v.  Grenaugh,  2  Ld. 
Raym.  866,  that  "if  a  man  set  his  horse  at  an  inn,  though  he 
lodge  in  another  place,  that  makes  him  a  guest,  and  the  inn- 
keeper is  obliged  to  receive  him  [the  horse]  ;  for  the  innkeeper 
gains  by  the  horse,  and  therefore  makes  the  owner  a  guest, 
though  he  was  absent."  But  the  deision  turned  on  the  con- 
struction of  the  avowry  and  the  proper  mode  of  pleading.  The 
two  judges  held,  "that  since  the  matter  shown  makes  it  appear 
that  he  was  a  guest,  it  is  enough,  though  it  is  not  expressly 

141 


GEINNELL  v.  COOK.  §  -0 

averred  that  he  was  a  guest."    But  Holt  said:    ''This  matter  is 
but  evidence  of  it,  that  he  was  a  guest,  and  is  not  traversable ; 
but  guest  or  not,  is  the  most  material  part  of  the  avowry,  and 
traversable ;  and  therefore  there  ought  to  be  a  positive  averment 
that  he  was  a  guest."    This  is  not  all.    The  two  judges  gave  as 
the  authority  for  their  dictum  the  ease  of  Robinson  v.  Walter, 
Poph.  127.    The  point  there  decided  was,  that  the  innkeeper  had 
a  lien  on  the  plaintiff's  horse,  although  the  animal  was  brought 
to  the  inn  by  one  who  took  him  wrongfully.    And  that  is  good 
law  at  this  day,  if  the  innkeeper  have  no  notice  of  the  wrong, 
and  act  honestly :  Johnson  v.  Hill,  3  Stark.  172.    He  is  bound  to 
receive  the  guest,  and  cannot  stop  to  inquire  whether  he  is  the 
right  owner  of  the  property  he  brings.    But  not  one  word  was 
said  in  the  case  of  Robinson  v.  Walter,  in  support  of  the  posi- 
tion that  the  owner  or  person  who  brings  the  property  need  not 
be  a  guest.     The  subject  was  not  even  mentioned,  so  far  as  ap- 
pears by  the  report  in  Popham.    But  by  the  report  of  the  same 
case  in  3  Bulst.  269,  it  appears  affirmatively  that  the  wrong-doer 
who  brought  the  horse  to  the   inn   actually  became   a   guest, 
and   afterwards  went   away,   leaving  the   horse   behind.     Now 
when  a  man,   after  he  has  actually  become  a  guest  and   de- 
livered his  property  to  the  host,  goes  away  for  a  brief  period 
leaving  his  goods  behind  him,  the  law  is  chargeable  with  no  ab- 
surdity in  considering  him  as  still  continuing  a  guest  so  far  as 
relates  to  the  rights  and  liabilities  of  the  parties.     And  if  one 
send  his  horse  or  his  trunk  in  advance  to  the  inn,  saying  he  will 
soon  be  there  himself,  it  may  be  that  he  should  be  deemed  a 
guest  from  the  time  the  property  is  taken  in  charge  by  the  host. 
But  when,  as  in  Mason  v.  Thompson,  the  owner  has  never  been 
at  the  inn,  and  never  intends  to  go  there  as  a  guest,  it  seems 
to  me  little  short  of  a  downright  absurdity  to  say,  that  in  legal 
contemplation  he  is  a  guest.    If  our  law-givers  had  intended  that 
the  innkeeper  should  be  answerable  as  such  for  everything  he 
received  in  charge,  guest  or  no  guest,  they  would  have  said  so. 
They  would  not  have  taken  the  roundabout  mode  of  saying  that 
he  must  answer  for  the  goods  of  the  guest,  and  that  every  one  is 
a  guest  who  has  goods  in  his  hands.    Now  in  this  case,  Tyler,  who 
owned  the  horses,  never  was  the  plaintiff's  guest;  nor  was  he  a 
traveler  or  transient  person.     He  was  the  plaintiff's  neighbor. 
In  this  respect  the  case  differs  from  Mason  v.  Thompson,  though 
I  should  feel  no  disposition  to  follow  that  decision  if  this  dif- 
ference did  not  exist.     I  think  the  extraordinary  liability  of 
the  innkeeper  does  not  attach  until  he  actually  has  a  guest,  and 
without  such  liability  the  innkeeper,  as  such,  has  no  lien  on 

10  145 


§  40  OF  LOCATIO  OPEEIS, 

the  goods.  Whether  he  has  a  lien  in  any  other  character  remains 
to  be  considered. 

The  right  of  lien  has  always  been  admitted  where  the  party 
w^as  bound  by  law  to  receive  the  goods;  and  in  modern  times 
the  right  has  been  extended  so  far  that  it  may  now  be  laid  down 
as  a  general  rule,  that  every  bailee  for  hire  who  by  his  labor 
and  skill  has  imparted  an  additional  value  to  the  goods,  has  a 
lien  upon  the  property  for  his  reasonable  charges.  This  in- 
cludes all  such  mechanics,  tradesmen,  and  laborers  as  receive 
property  for  the  purpose  of  repairing,  or  otherwise  improving 
its  condition.  But  the  rule  does  not  extend  to  a  livery-stable 
keeper,  for  the  reason  that  he  only  keeps  the  horse^,  without, 
imparting  any  new  value  to  the  animal.  And  besides,  he  does 
not  come  within  the  policy  of  the  law,  which  gives  the  lien  for 
the  benefit  of  trade.  Upon  the  same  reasons  the  agister  or 
farmer  who  pastures  the  horses  or  cattle  of  another  has  no  lien 
for  their  keeping,  unless  there  he  a  special  agreement  to  that 
effect.  This  doctrine  was  laid  down  in  Chapman  v.  Allen,  Cro. 
Car.  271.  And  in  Yorke  v.  Grenaugh,  2  Ld.  Raym.  868,  Lord 
Holt  said,  a  livery-stable  keeper  has  no  lien.  See  the  remarks  of 
Lord  Lyndhurst,  C.  B.,  upon  this  case  in  Judson  v.  Etheridge, 
1  Cromp.  &  ]\Iee.  743.  I  am  not  aware  that  this  rule  has  ever 
been  departed  from,  though  it  has  been  suggested  that  it  would 
be  well  enough  to  place  the  livery  man  on  the  same  footing 
with  other  persons  who  bestow  their  labor  and  care  upon  the 
property  entrusted  to  their  keeping:    Cowen's  Tr.  299,  2d  ed. 

But  the  question  has  recently  undergone  a  good  deal  of  dis- 
cussion in  England,  and  the  result  is  that  the  old  cases  remain 
unshaken,  and  it  must  now  be  regarded  as  the  settled  doctrine 
that  agisters  and  livery-stable  keepers  have  no  lien  unless  there 
be  a  special  contract  to  that  effect :  Wallace  v.  Woodgate,  1  Car. 
&  P.  575;  Ry.  &  M.  193;  Bevan  v.  Waters,  3  Car.  &  P.  520; 
Judson  V,  Etheridge,  1  Cromp.  &  M.  743 ;  Jackson  v.  Cummins, 
5  Mee.  &  W.  342.  And  see  Jacobs  v.  Latour,  5  Bing.  130;  2 
Moore  &  P.  201;  Sanderson  v.  Bell,  2  Cromp.  &  M.  304;  Scarfe 
V.  ]\Iorgan,  4  Mee.  &  W.  270.  It  will  be  seen  from  the  cases 
which  have  been  mentioned,  that  a  distinction,  in  relation  to  the 
question  of  lien,  lias  been  taken  between  the  mare-keeper  and 
the  trainer  of  a  horse;  and  it  is  said  that  the  latter  has  a  lien, 
because  he  has  done  something  for  the  improvement  of  the  ani- 
mal. And  in  Judson  v.  Etheridge,  it  was  suggested  by  Bolland, 
B.,  that  the  doctrine  might,  perhaps,  be  extended  to  the  case  of 
a  breaker  who  takes  a  young  horse  to  be  broken,  on  the  ground 
that  he  makes  it  a  different  animal  from  what  it  was  before,  and 
improves  the  animal  by  the  application  of  labor  and  skill.     On 

146 


BURDICT  V.  MUKEAY.  §§  40,  ^l 

the  same  principle  it  has  been  held,  that  if  a  farmer  or  stable- 
keeper  receive  a  mare  for  the  purpose  of  being  covered  by  hie 
stallion,  he  has  a  specific  lien  for  the  charge  of  covering. 
AMiether  these  distinctions  were  well  taken  or  not,  they  show 
that  the  courts  have  steadily  adhered  to  the  rule  that  one  who 
merely  provides  food  and  takes  the  care  of  an  animal,  as  an 
agister  or  livery-stable  keeper,  has  no  lien  except  by  contract. 

There  is  a  further  reason  why  there  can  be  no  lien  in  these 
cases.  When  horses  are  kept  at  livery,  the  owner  takes  and  uses 
them  at  pleasure,  and  the  bailee  only  has  a  lien  so  long  as  he 
retains  the  uninterrupted  possession.  If  the  owner  gets  the 
property  into  his  hands  without  fraud,  the  lien  is  at  an  end,  and 
it  wiUnatJaa  revived  hy_-lhfi.. return. jif_±l]Lfi_gQods.:  Bevan  v.  Wa- 
ters, 3  Car.  &  P.  520 ;  Jones  v.  Thurloe,  8  Mod.  172 ;  Jones  v. 
Pearle,  1  Stra.  556 ;  Sweet  v.  Pym,  1  East  4.  So  in  the  case  of 
milch-cows,  the  agister  has  no  lien,  for  the  reason  that  the  owner 
has  occasional  possession  for  the  purpose  of  milking  them ;  Jack- 
son V.  Cummins,  5  Mee.  &  W.  342 ;  Cross  on  Lien,  25,  36,  332. 
Now  here,  from  the  nature  of  the  case,  the  plaintiff  was  not 
to  have  the  continued  and  exclusive  possession  of  the  horses, 
but  Tyler  was  at  liberty  to  take  and  use  them  when  he  pleased, 
and  he  did  in  fact  take  them  at  pleasure.  The  witness  says  he 
does  not  know  that  the  plaintiff  was  at  home  when  Tyler  took  the 
horses,  but  there  was  no  pretense  that  they  were  taken  by  fraud, 
or  against  the  will  of  the  plaintiff. 

The  plaintiff  can  not  stand  upon  any  better  footing  than  a 
livery-stable  keeper,  and  as  such  he  had  no  lien. 

Judgment  affirmed. 


5(  41.     BURDICT  V.  MURRAY, 
3  Vt.  302;  21  Am.  D.  588.    1830. 

Trespass  for  taking  and  carrying  away  sheep  and  goat  skins 
delivered  to  plaintiffs  to  be  dressed  into  morocco.  Before  the 
work  was  completed  the  owners  turned  the  skins  over  to  the  de- 
fendant, a  creditor,  who  caused  them  to  be  attached.  Verdict 
directed  for  plaintiff.     Defendants  excepted. 

By  Court,  Prentiss,  C.  J.  It  is  the  better  opinion  that  he 
who  has  a  special  property  in  goods  may  have  an  action  of  tres- 
pass against  him  who  has  the  general  property,  and  upon  the 
evidence  the  damage  shall  be  mitigated.  Thus  a  bailee  of  a 
chattel  for  a  certain  time,  coupled  with  an  interest,  may  support 
the  action  against  the  bailor  for  taking  it  away  before  the  time  : 

147 


§1  41,  42  or  LOCATIO  OPEEIS. 

1  Chit.  PL  170.  There  is  no  doubt,  therefore,  but  that  the 
plaintiffs  in  the  case  before  us,  if  they  had  a  special  property 
in  the  skins,  were  entitled  to  maintain  this  action,  and  recover 
according  to  their  interest,  although  the  skins  were  turned  out 
to  the  defendants,  on  the  writ  of  attachment,  by  Allen  and 
Warren  Murray,  the  owners. 

The  plaintiffs,  under  the  contract  with  the  Murrays,  were 
bailees  having  an  interest,  and  had  a  right  to  retain  the  skins 
for  the  purpose  for  which  they  were  bailed  to  them.  Until  the 
skins  were  dressed  and  made  into  morocco,  the  plaintiffs  were 
entitled  to  the  possession  of  them;  and  even  then  they  would 
have  a  lien  upon  the  skins  for  the  price  agreed  to  be  paid  for 
their  labor  upon  them.  A  workman  who  has  bestowed  his  labor 
upon  a  chattel  has  a  lien  for  the  remuneration  due  to  him, 
whether  the  amount  was  fixed  by  the  express  agreement  of  the 
parties  or  not;  though  it  is  otherwise  if,  by  the  bargain,  a 
future  day  of  payment  was  agreed  upon,  for  then  the  detention 
of  the  chattel  would  be  inconsistent  with  the  terms  of  the 
contract:  Chase  v.  Westmore,  5  Mau.  &  Sel.  180.  Here  there 
was  no  particular  time  or  mode  of  payment  agreed  upon,  and 
if  the  plaintiff's  had  completed  the  manufacture  of  the  skins 
according  to  the  agreement,  they  would  have  had  an  unques- 
tionable right  to  detain  them  until  the  price  was  paid,  unless 
they  had  already  in  their  hands  a  balance  sufficient  to  pay  the 
price.  But  the  skins  were  in  an  unfinished  state,  and  the 
plaintiffs  had  a  right,  under  the  contract,  to  retain  them  to  earn 
the  price.  If  at  the  time  of  taking  the  skins  the  Murrays  had 
offered  and  agreed  to  allow  the  plaintiffs  the  full  price  stipulated 
to  be  paid  for  furnishing  them,  out  of  moneys  actually  in  the 
plaintiffs'  hands  sufficient  to  pay  the  price,  it  might  have  been 
a  good  defense.  But  as  no  such  offer  appears  to  have  been 
made,  the  evidence  proposed  by  the  defendants  could  not  avail 
them. 

Judgment  affirmed. 


^  42.    STEINMAN  V.  WILKINS, 

7  Watts  and  S.  (Pa.)  466;  42  Am.  D.  254.     1844. 

Trover  for  conversion  of  goods  stored  with  defendant  as  ware- 
houseman by  plaintiff's  assignors.  Demand  for  the  goods  had 
been  made,  but  no  tender  of  charges.    Verdict  for  defendant. 

By  Court,  Gibson,  C.  J.  Though  a  plurality  of  the  barons  in 
Rex.  V.  Humpheiy,  1  McCle.  &  Yo.  194,  195,  dissented  from  the 

148 


STEINMAN  V.  WILKINS.  §  42 

dictum  of  Baron  Graham,  that  a  warehouseman  has  a  lien  for  a 
general  balance,  like  a  wharfinger,  I  do  not  understand  them 
to  have  intimated  that  he  has  no  lien  at  all.  They  spoke  of  it 
as  an  entity;  and  seem  to  have  admitted  that  he  has  a  specific 
lien,  though  not  a  general  one.  There  is  a  well-known  distinc- 
tion between  a  commercial  lien,  which  is  the  creature  of  usage, 
and  a  common  law  lien,  which  is  the  creature  of  policy.  The 
first  gives  a  right  to  retain  for  a  balance  of  account ;  the  second, 
for  services  performed  in  relation  to  the  particular  property. 
Commercial  or  general  liens,  which  have  not  been  fastened  on 
the  law  merchant  by  inveterate  usage,  are  discountenanced  by 
the  courts  as  encroachments  on  the  common  law;  and  for  that 
reason  it  would  be  impossible  to  maintain  the  position  of  Baron 
Graham,  for  there  is  no  evidence  of  usage  as  a  foundation  for  it, 
and  no  text- writer  has  treated  a  warehouse  room  as  a  subject  of 
lien  in  any  shape.  In  Rex.  v.  Humphery,  it  was  involved  in  the 
discussion  only  incidentally ;  and  I  have  met  with  it  in  no  other 
ease.  But  there  is  doubtless  a  specific  lien  provided  for  it  by 
the  justice  of  the  common  law.  From  the  case  of  a  chattel 
bailed  to  acquire  additional  value  by  the  labor  or  skill  of  an 
artisan,  the  doctrine  of  specific  lien  has  been  extended  to  almost 
every  case  in  which  the  thing  has  been  improved  by  the  agency 
of  the  bailee.  Yet,  in  the  recent  case  of  Jackson  v.  Cummins,  5 
Mee.  &  W.  342,  it  was  held  to  extend  no  further  than  to  cases  in 
which  the  bailee  has  directly  conferred  additional  value  by  labor 
or  skill,  or  indirectly  by  the  instrumentality  of  an  agent  under 
his  control ;  in  supposed  accordance  with  which  it  was  ruled  that 
the  agistment  of  cattle  gives  no  lien.  But  it  is  difficult  to  find 
an  argument  for  the  position,  that  a  man  who  fits  an  ox  for  the 
shambles,  by  fattening  it  with  his  provender,  does  not  increase  its 
intrinsic  value  by  means  exclusively  within  his  control.  There 
are  certainly  cases  of  a  different  stamp,  particularly  Bevan  v. 
Waters,  Moo.  &  M.  235,  in  which  a  trainer  was  allowed  to  re- 
tain for  fitting  a  race-horse  for  the  turf. 

In  Jackson  v.  Cummins  we  see  the  expiring  embers  of  the 
primitive  notion  that  the  basis  of  the  lien  is  intrinsic  improve- 
ment of  the  thing  by  mechanical  means ;  but  if  we  get  away  from 
it  at  all,  what  matters  it  how  the  additional  value  has  been  im- 
parted, or  whether  it  has  been  attended  with  an  alteration  in 
the  condition  of  the  thing?  It  may  be  said  that  the  condition 
of  a  fat  ox  is  not  a  permanent  one ;  but  neither  is  the  increased 
value  of  a  mare  in  foal  permanent;  yet  in  Scarfe  v.  Morgan,  4 
Mee.  &  W.  270,  the  owner  of  a  stallion  was  allowed  to  have  a  lien 
for  the  price  of  the  leap.  The  truth  is,  the  modern  decisions 
evince  a  struggle  of  the  judicial  mind  to  escape  from  the  narrow 

149 


§  42  OF  LOCATIO  OPEEIS. 

■  confines  of  the  earlier  precedents,  but  without  having  as  yet 
established  principles  adapted  to  the  current  transactions  and 
conveniences  of  the  world.  Before  Chase  v.  AVestmore,  5  ]Mau. 
&  Sel.  180,  there  was  no  lien  even  for  work  done  under  a  special 
agreement ;  now,  it  is  indifferent  whether  the  price  has  been 
fixed  or  not.  In  that  case,  Lord  Ellenborough,  alluding  to  the 
old  decisions,  said  that  if  they  "are  not  supported  by  law  and 
reason,  the  convenience  of  mankind  certainly  requires  that  our 
decisions  should  not  be  governed  by  them;"  and  Chief  Justice 
Best  declared  in  Jacobs  v.  Latour,  5  Bing.  132,  that  the  doctrine 
of  lien  is  so  just  between  debtor  and  creditor,  that  it  can  not  be 
too  much  favored.  In  Kirkman  v.  Shawcross,  6  T.  R.  17,  Lord 
Kenyon  said  it  had  been  the  wish  of  the  courts,  in  all  cases  and 
at  all  times,  to  carry  the  lien  of  the  common  law  as  far  as  pos- 
sible; and  that  Lord  ^Mansfield  also  thought  that  justice  required 
it,  though  he  submitted  when  rigid  rules  of  law  were  against  it. 
What  rule  forbids  the  lien  of  a  warehouseman?  Lord  Ellen- 
borough  thought  in  Chase  v.  AVestmore,  supra,  that  every  case 
of  the  sort  was  that  of  a  sale  of  services  performed  in  relation 
to  a  chattel,  and  to  be  paid  for,  as  in  the  case  of  any  other  sale, 
when  the  article  should  be  delivered.  Now,  a  sale  of  warehouse 
room  presents  a  case  which  is  bound  by  no  pre-established  rule 
or  analogy;  and,  on  the  ground  of  principle,  it  is  not  easy  to 
discover  why  the  warehouseman  should  not  have  the  same  lien 
for  the  price  of  future  delivery  and  intermediate  care  that  a 
carrier  has.  The  one  delivers  at  a  different  time,  the  other  at  a 
different  place;  the  one  after  custody  in  a  warehouse,  the  other 
in  a  vehicle;  and  that  is  all  the  difference. 

True,  the  measure  of  the  carrier's  responsibility  is  greater; 
but  that,  though  a  consideration  to  influence  the  quantum  of 
his  compensation,  is  not  a  consideration  to  increase  the  number 
of  his  securities  for  it.  His  lien  does  not  stand  on  that.  He  is 
bound  in  England  by  the  custom  of  the  realm  to  carry  for  all 
employers  at  established  prices;  but  it  is  by  no  means  certain 
that  our  ancestors  brought  the  principle  with  them  from  the 
parent  country  as  one  suited  to  their  condition  in  the  wilderness. 
We  have  no  trace  of  an  action  for  refusing  to  carry;  and  it  is 
notorious,  that  the  wagoners  who  were  formerly  the  carriers  be- 
tween Philadelphia  and  Pittsburgh,  frequently  refused  to  load 
at  the  current  price.  Now,  neither  the  carrier  nor  the  ware- 
houseman adds  a  particle  to  the  intrinsic  value  of  the  thing.  The 
one  delivers  at  the  place,  and  the  other  at  the  time,  that  suits  the 
interest  or  the  convenience  of  the  o"\^Tier  of  it,  in  whose  estima- 
tion it  receives  an  increase  of  its  relative  value  from  the  services 

150 


SCHMIDT  V.  BLOOD.  §§  42,  43 

rendered  in  respect  of  it,  else  he  would  not  have  undertaken  to 
pay  for  them.  I  take  it,  then,  that,  in  regard  to  lien,  a  ware- 
houseman stands  on  a  footing  with  a  carrier,  whom  in  this  coun- 
try he  closel}^  resembles. 

Now,  it  is  clear  from  Sodergren  v.  Flight  and  Jennings,  cited 
6  East,  612,  that  where  the  ownership  is  entire  in  the  consignee, 
or  a  purchaser  from  him,  each  parcel  of  the  goods  is  bound,  not 
only  for  its  particular  proportion,  but  for  the  whole,  provided 
the  whole  has  been  carried  under  one  contract;  it  is  otherwise 
where  to  charge  a  part  for  the  whole  would  subject  a  purchaser 
to  answer  for  the  goods  of  another,  delivered  by  the  bailee  with 
knowledge  of  the  circumstances.  In  this  instance^  the  entire 
interest  was  in  Hamilton  &  Humes,  in  whose  right  the  plaintiff 
sues;  and  the  principle  laid  down  by  the  presiding  judge  was 
substantially  right.  On  the  other  hand,  the  full  benefit  of  it 
was  not  given  to  the  defendant  in  charging  that  the  demand  and 
refusal  was  evidence  of  conversion.  There  was  no  evidence  of 
tender  to  make  the  detention  wrongful;  and  the  defendant 
would  have  had  cause  to  complain,  had  the  verdict  been  against 
him,  of  the  direction  to  deduct  the  entire  price  of  the  storage 
from  the  value  of  the  articles  returned,  and  to  find  for  the 
plaintiff  a  sum  equal  to  the  difference.  But  there  has  been  no 
error  which  the  plaintiff  can  assign. 

Judgment  affirmed.  \/^  « 


43.     SCHMIDT  V.  BLOOD, 

9  Wend.  (N.  Y.)  268;  24  Am.  D.  143.     1832. 

Replevin  for  six  and  one-half  tons  of  hemp.  Ninety-nine  tons 
had  been  stored  with  defendants  as  warehousemen,  of  which 
their  store-keeper  had  stolen  ten  tons.  Plaintiffs  demanded  the 
balance  remaining  in  store  and  offered  to  pay  storage  on  such 
balance.  Defendants  refused  to  deliver  until  storage  on  all  the 
hemp  stored  had  been  paid.  Verdict  for  plaintiffs,  and  motion 
for  new  trial  because  of  rejection  of  evidence  of  care  by  plaintiff 
and  usage  in  New  York  to  retain  balance  as  lien  for  whole  stor- 
age. 

By  Court,  Sutherland,  J.  It  appears  to  be  well  settled  that 
a  warehouseman,  or  depositary  of  goods  for  hire,  is  responsible 
only  for  ordinary  care,  and  is  not  liable  for  loss  arising  from 
accident  when  he  is  not  in  default :  2  Kent  Com.  441 ;  4  T. 
R.  481 ;  Peake  N.  P.  114 ;  4  Esp.  N.  P.  262 ;  and  in  Finueane  v. 

151 


§§  43,  44  OF  LOCATIO  OPEEIS. 

Small,  1  Id.  315,  it  was  held  that  if  goods  be  bailed  to  be  kept 
for  hire,  if  the  compensation  be  for  house  room,  and  not  a  re- 
ward for  care  and  diligence,  the  bailee  is  bound  only  to  take  the 
same  care  of  the  goods  as  of  his  own,  and  if  they  be  stolen  or 
embezzled  by  his  servant  without  gross  negligence  on  his  part, 
he  is  not  liable,  and  the  onus  of  showing  negligence  seems  to 
be  upon  the  plaintiff,  unless  there  is  a  total  default  in  deliver- 
ing or  accounting  for  the  goods :  7  Cow.  500,  note  a,  and  cases 
there  cited:  3  Taunt.  264;  5  Barn.  &  Cress.  322;  1  H.  Bl.  298; 
Jones  on  Bailm.  106,  n.  40;  2  Salk.  655;  1  T.  R.  33.  The  de- 
fendants' claim  for  storage,  therefore,  is  not  prejudiced  by  the 
fact  that  a  portion  of  the  goods  had  been  purloined  or  embez- 
zled by  the  storekeeper  or  servant. 

The  defendants  had  a  lien  on  the  whole  and  every  part  of 
the  hemp  for  their  storage  of  the  whole ;  it  was  but  one  parcel ; 
the  whole  was  deposited  with  them  at  the  same  time;  it  was 
but  one  transaction.  It  is  admitted  that  the  defendants  might 
have  refused  to  deliver  any  portion  of  the  hemp  until  their 
storage  for  that  particular  portion  was  paid ;  but  having 
parted  with  all  but  six  and  a  half  tons,  it  is  contended  that 
they  have  no  right  to  retain  that  for  their  charges  in  relation 
to  the  other  portions.  This  can  not  be ;  it  would  be  found 
most  inconvenient  in  practice.  Restricting  the  lien  to  services 
rendered  in  relation  to  the  whole  quantity  deposited  at  the  same 
time,  it  becomes  a  just  and  reasonable  rule,  giving  effect  un- 
doubtedly to  the  actual  intentions  and  understanding  of  the 
parties;  and  promoting  the  convenience  of  trade  and  business: 
2  Kent  Com.  495,  496. 

New  trial  granted. 


44.     WHITLOCK  V.  HEARD, 

13  Ala.  776;  48  Am.  D.  73.    1848. 

Trover  for  the  conversion  of  stock  which  plaintiff  left  with 
defendant  to  keep,  with  power  to  sell  it  to  pay  for  the  keeping 
and  a  note  given  to  satisfy  a  gaming  debt  of  plaintiff's.  Plain- 
tiff notified  defendant  not  to  pay  the  note.  Defendant  sold  the 
stocks  at  public  auction,  bidding  them  in  himself.  The  court 
below  ruled  that  this  was  not  a  sale.     Plaintiff  appealed. 

By  Court,  Dargan,  J.  In  an  action  of  trover,  it  is  necessary 
for  the  plaintiff  to  show  title  to  the  property,  an  immediate 
right  of  possession,  and  a  conversion  by  the  defendant.     The 

152 


WHITLOCK  V.  HEAED.  §  44 

plaintiff's  title  to  the  property  in  this  ease,  was  not  denied  by 
the  charge  of  the  judge,  but  the  charge  was  calculated  to  induce 
the  belief,  either  that  there  was  no  conversion  shown,  or  that 
the  plaintiff  did  not  have  an  immediate  right  to  the  possession; 
hence  arises  the  necessity  of  examining  this  question.  If  one 
deliver  stock,  or  cattle,  to  another,  to  be  kept  or  fed,  with  the 
power  to  sell  them  to  pay  for  their  keep,  will  trover  lie  against 
the  party  to  whom  they  are  so  delivered,  if  he  convert  the  cattle 
to  his  own  use  without  tendering  pay  for  keeping  them?  It  is 
very  clear,  that  if  a  factor,  or  other  bailee,  having  a  lien  on 
goods,  sell  them,  or  convert  them  to  his  own  use,  or  destroy 
the  goods,  as  by  drawing  out  a  quantity  of  wine  from  a  cask, 
and  filling  it  up  with  water,  that  the  owner  may  bring  trover 
immediately,  without  regard  to  the  lien:  See  Nash  v.  Mosher, 
19  Wend.  431,  and  the  cases  there  cited.  And  I  think  that  any 
act  by  a  lien  holder,  inconsistent  Math  the  character  of  his  pos- 
session, and  denying  the  title  of  the  owner,  will  justify  the 
owner  in  bringing  trover,  and  that  such  conduct  on  the  part  of 
the  lien  holder  destroys  his  lien.  See  Samuel  v.  Morris,  6  Car. 
&  P.  620. 

This  view  is  corroborated  by  Mr.  Chitty,  in  his  work  on  plead- 
ing, page  152.  It  is  there  said,  that  if  a  person  have  goods  in 
his  possession,  on  which  he  has  a  lien  for  the  payment  of  a 
debt,  the  owner  can  not  bring  trover  without  tendering  the 
money  due  on  the  goods.  But  if  the  party  being  applied  to 
for  the  goods  refuses  to  deliver  them  for  a  different  reason  than 
that  he  has  a  lien  on  them  for  his  debt,  and  do  not  mention  his 
lien,  he  shall  not  be  permitted  to  set  up  his  lien  afterwards,  to 
defeat  the  owner  in  an  action  of  trover.  See  also  Bac.  Abr., 
tit.  Trover.  Now  the  reason  of  this  can  only  be,  that  one  being 
applied  to  for  the  goods,  the  lien  holder  repudiated  the  title  of 
the  owner,  denied  the  character  of  his  possession,  and  conse- 
quently there  was  a  clear  conversion  of  the  property.  Hence, 
trover  would  lie.  Had  there  been  no  express  agreement  in  this 
case,  that  the  mare  and  colts  should  be  pledged  to  pay  for  keep- 
ing them,  with  the  power  to  sell,  if  necessary,  to  pay  for  their 
keep,  there  would  be  no  difficulty;  for  the  conduct  of  the  de- 
fendant was  such,  as  would  have  justified  a  jury  in  coming  to 
the  conclusion,  that  he  held  the  property,  not  in  subordination 
to  the  title  of  the  owner,  but  that  he  had  set  up  his  own  title  as 
adverse  to  that  of  the  owner,  and  by  such  conduct,  his  lien 
would  have  been  no  protection  to  him  against  this  suit.  But 
here  there  was  an  express  agreement,  that  the  stock  should  be 
liable  for  keeping  them,  with  the  power  to  sell  them  to  pay  the 

153 


§§  44,  45  OF  LOCATIO  OPEEIS. 

expenses.  This  is  a  contract,  and  is  not  a  new  lien,  resulting 
from  the  rules  of  law.  By  the  terms  of  this  contract,  the  de- 
fendant had  the  right  to  sell  so  much  of  the  stock  as  was  neces- 
sary to  pay  what  might  be  due  to  him  for  keeping  them.  If 
one  of  the  horses  was  enough  for  this  purpose,  he  should  not 
have  sold  more — but  proceeding  to  sell  all  of  them,  which  was 
not  necessary  to  pay  the  expense  of  their  keeping,  was  an  assump- 
tion of  ownership  beyond  the  authority  conferred  on  him  by  the 
terms  of  the  contract.  The  power  to  sell  ceased  with  the  extin- 
guishment of  his  demand ;  his  debt  for  keeping  the  horses  being 
paid,  he  had  no  right  to  sell  more,  and  his  doing  so  was  a  con- 
version of  that  portion  of  the  stock  sold  by  him,  which  was  not 
necessary  to  pay  the  debt  due  for  keeping  them.  The  circuit 
court  therefore  erred  in  refusing  to  give  the  charge  requested, 
that  the  defendant  was  liable  for  such  of  the  stock  sold,  as  were 
not  necessary  to  pay  the  amount  due  for  keeping  them.  The 
view  here  taken,  is  sustained  by  the  case  of  Roberts  v.  Beeson, 
4  Port.  (Ala.)  164.  In  that  case  it  was  decided,  that  an  action  of 
trespass  would  lie  against  a  sheriff,  who  sold  more  of  the  defend- 
ant's goods  than  was  necessary  to  pay  the  execution.  So  it  has 
been  held,  that  if  a  sheriff  having  a  ^.  fa,  for  forty  shillings,  sell 
five  yoke  of  oxen,  one  yoke  being  sufficient  to  satisfy  the  ft.  fa., 
he  may  be  considered  as  a  trespasser,  and  sued  as  such,  for  the 
value  of  the  four.  See  the  case  referred  to  in  4  Port,  and  20 
Vin.  Abr.  458. 

The  charge  of  the  court  as  asked,  admits  the  right  of  the  de- 
fendant to  sell  enough  to  pay  his  debt,  but  sought  to  charge 
him  for  the  conversion  of  that  portion  of  the  stock,  sold  after 
he  had  raised  money  enough  to  extinguish  it.  The  court  did 
not  give  this  charge,  because  the  defendant  himself  was  the 
purchaser.  The  sale  was  at  public  auction,  and  the  defendant 
the  highest  bidder.  Such  a  sale  is  not  absolutely  void,  but  is 
voidable  at  the  election  of  the  party  whose  title  is  sought  to  be 
divested  by  such  sale.  The  court  should  have  given  the  charge 
as  requested,  and  for  the  refusal  so  to  charge,  the  cause  is  re- 
versed and  remanded. 


45.  In  Doane  v.  Russell,  3  Gray  (Mass.)  382,  1855,  Chief 
Justice  Shaw  said : 

We  think  the  rule  is  generally  stated  by  the  text  writers,  that  a  party 
having  a  lien  only,  without  a  power  of  sale  superadded  by  agreement, 
cannot  lawfully  sell  the  chattel  for  his  reimbursement.  It  is  so  stated  in 
1  Chit.  Gen.  Pract.  492;  and  he  advises  carriers  and  others,  entitled  to  a 
lien,  to  obtain  an  express  stipulation  for  a  power  of  sale  in  ease  the  lien 
is  not  satisfied.    2  Kent  Com.  (6th  ed.)  642.    Cross  on  Lien,  47.     Woolrych 

154 


POTTS  V.  NEW  YOKK  AND  NEW  ENGLAND  E.  E.  CO.  §§45,46 

on  Com.  &  Merc.  Law,  237.  The  language  of  the  learned  American  com- 
mentator, in  summing  up  his  article  on  lieu,  is  this :  "I  will  conclude  with 
observing  that  a  lien  is,  in  many  cases,  like  a  distress  at  common  law,  and 
gives  the  party  detaining  the  chattel  the  right  to  hold  it  as  a  pledge  or 
security  for  the  debt,  but  not  to  sell  it." 

If  it  be  said  that  a  right  to  retain  the  goods,  without  the  right  to  sell, 
is  of  little  or  no  value;  it  may  be  answered  that  it  is  certainly  not  so 
adequate  a  security  as  a  pledge  with  a  power  of  sale;  still,  it  is  to  be 
considered  that  both  parties  have  rights  which  are  to  be  regarded  by  the 
law;  and  the  rule  must  be  adapted  to  general  convenience.  In  the  greater 
number  of  cases,  the  lien  for  work  is  small  in  comparison  with  the  value, 
to  the  owner,  of  the  article  subject  to  lien;  and  in  most  cases  it  would  be 
for  the  interest  of  the  owner  to  satisfy  the  lien  and  redeem  the  goods;  as 
in  the  case  of  the  tailor,  the  coachmaker,  the  innkeeper,  the  carrier  and 
others.  Whereas,  many  times,  it  would  cause  great  loss  to  the  general 
owner  to  sell  the  suit  of  clothes  or  other  articles  of  personal  property.  _  But 
further,  it  is  to  be  considered  that  the  security  of  this  lien,  such  as  it  is, 
is  superadded  to  the  holder's  right  to  recover  for  his  services  by  action. 
And  if  the  transaction  be  a  large  one,  and  of  such  a  character  as  to 
require  further  security,  it  may  be  provided  for  by  an  express  stipulation 
for  a  power  of  sale,  under  such  limitations  as  the  particular  circumstances 
of  the  case  may  indicate  as  suitable  to  secure  the  rights  of  all  parties 
concerned. 


46.     POTTS  V.  NEW  YORK  AND  NEW  ENGLAND  RAIL- 
ROAD CO., 

131  Mass.  455;  41  Am.  R.  247.     1881. 

Tort  for  conversion  of  coal.     Judgment  below  for  defendant. 

Gray,  C.  J.  A  carrier  of  goods  consigned  to  one  person  under 
one  contract  has  a  lien  upon  the  whole  for  the  lawful  freight  and 
charges  on  every  part,  and  a  delivery  of  part  of  the  goods  to  the 
consignee  does  not  discharge  or  waive  that  lien  upon  the  rest 
without  proof  of  an  intention  so  to  do.  Sodergren  v.  Flight,  cited 
in  6  East,  622;  Abbott  on  Shipping  (7th  ed.),  377;  Lane  v.  Old 
Colony  R.  R.,  14  Gray,  143 ;  New  Haven  &  Northampton  Co.  v. 
Campbell,  128  Mass.  104;  35  Am.  Rep.  360.  And  when  the 
consignor  delivers  goods  to  one  carrier  to  be  carried  over  his 
route,  and  thence  over  the  route  of  another  carrier,  he  makes 
the  first  carrier  his  forwarding  agent ;  and  the  second  carrier  has 
a  lien,  not  only  for  the  freight  over  his  own  part  of  the  route, 
but  also  for  any  freight  on  the  goods  paid  by  him  to  the  first 
carrier.  Briggs  v.  Boston  &  Lowell  R.  R.,  6  Allen,  246,  250,  83 
Am.  D.  626. 

The  right  of  stoppage  in  transitu  is  an  equitable  extension, 
recognized  by  the  courts  of  common  law,  of  the  seller's  lien  for 
the  price  of  goods  of  which  the  buyer  has  acquired  the  property, 
but  not  the  possession.  Bloxam  v.  Sanders,  4  B.  &  C.  941,  948, 
949,  and  7  D.  &  R.  396,  405,  406 ;  Rowley  v.  Bigelow,  12  Pick. 

155 


§  §  -16,  47  OF  LOCATIO  OPEKIS. 

307,  313  (23  Am.  Dec.  607).  This  right  is  indeed  paramount 
to  any  lien,  created  by  usage  or  by  agreement  between  the  car- 
rier and  the  consignee,  for  a  general  balance  of  account.  Oppen- 
heim  v.  Russell,  3  B.  &  P.  42 ;  Jackson  v.  Nichol,  5  Bing.  N.  C. 
508,  518,  and  7  Scott,  577,  591.  See  also,  Butler  v.  Woolcott, 
2  B.  &  P.  N.  R.  64;  Sears  v.  Wills,  4  Allen,  212,  216.  But  the 
common-law  lien  of  a  carrier  upon  a  particular  consignment  of 
goods  arises  from  the  act  of  the  consignor  himself  in  delivering 
the  goods  to  be  carried ;  and  no  authority  has  been  cited,  and  no 
reason  offered,  to  support  the  position  that  this  lien  of  the  car- 
rier upon  the  whole  of  the  same  consignment  is  not  as  valid 
against  the  consignor  as  against  the  consignee. 
Judgment. for  the  defendant. 


r- 


47.     AMERICAN  DISTRICT  TELEGRAPH  CO.  V. 
WALKER, 

72  Md.  454;  20  Atl.  R.  1;  20  Am.  St.  R.  479.    1890. 


Alvey,  C.  J.  This  action  was  brought  by  the  appellee  against 
the  appellant  to  recover  for  injury  to  a  pair  of  horses,  and  to  a 
surrey  wagon,  a  vehicle  to  which  the  horses  were  attached  at  the 
time  of  the  accident.  The  question  is,  whether  the  defendant 
is  responsible  for  the  consequences  of  the  accident. 

The  defendant  is  a  corporation,  and  it  appears  that  it  holds 
itself  out  for  the  undertaking  of  the  performance  of  various 
services,  such  as  the  carriage  of  parcels,  messages,  and  other 
errands  and  commissions,  upon  call  at  district  stations  in  the 
city.  The  corporate  name  of  the  defendant  would  not  appear 
to  indicate  very  clearly  the  nature  of  the  duties  that  it  assumes 
to  perform. 

It  appears  that  the  plaintiff  was  the  owner  of  a  pair  of  valu- 
able horses,  which  he  kept  at  Little's  livery-stable,  on  Howard 
Street;  and  having  the  horses  hitched  to  a  surrey  wagon  hired 
of  the  proprietor  of  the  livery-stable,  for  a  drive  in  the  country, 
upon  his  return  he  and  his  companions  stopped  at  a  restau- 
rant on  the  corner  of  Calvert  and  German  streets;  and  desir- 
ing to  have  the  horses  and  vehicle  taken  to  the  livery-stable, 
he  went  to  the  nearest  district  office  of  the  defendant  and 
asked  for  a  boy  competent  to  drive  a  pair  of  horses  to  Little's 
stable,  on  Ho'^vard  Street,  and  paid  the  customary  charge  for  a 
messenger  service.  The  manager  of  the  office  responded,  and 
sent  a  boy  to  take  the  team,  but  on  seeing  the  horses  and  be- 

156 


AMEEICAN  DISTEICT  TEL.  CO.  v.  WALKER.  §  47 

ing  asked  if  lie  could  drive,  the  boy  said  he  could  not  drive  a 
double  team,  and  thereupon  he  was  sent  back  to  the  office  by 
the  plaintiff,  and  the  latter  then  determined  to  wait  for  the 
driver  from  the  stable ;  but  before  such  driver  arrived,  another 
boy  from  the  defendant's  office  called  to  take  the  team,  who 
said,  in  answer  to  an  inquiry,  that  he  had  driven  a  double 
team  before;  and  the  plaintiff  gave  the  horses  and  vehicle  in 
charge  of  the  boy,  and  gave  him  direction  as  to  the  course 
he  should  take  to  get  to  the  stable  in  order  best  to  avoid 
crowded  streets.  The  boy  started  off  with  the  team,  but  on 
the  way  to  the  stable,  the  horses  ran  off,  threw  out  the  boy, 
broke  up  the  vehicle,  and  one  of  the  horses  was  so  seriously 
injured  that  he  had  to  be  shot,  and  the  other  horse  was  ren- 
dered unsafe  to  drive.  There  was  evidence  given  tending  to 
show  that  the  running  away  of  the  horses  was  caused  by  the 
negligent  or  unskillful  driving  of  the  boy.  It  would  appear 
that  the  furnishing  of  boys  to  drive  teams  for  customers  was 
part  of  the  ordinary  business  of  the  defendant;  for  Little,  the 
keeper  of  the  livery-stable,  testified  that  the  defendant  had  a 
call-box  in  his  stable,  and  that  he  frequently  called  messenger- 
boys  of.  the  defendant  to  drive  teams,  and  they  were  supplied, 
and  that  he  settled  for  such  service  monthly. 

There  was  evidence  offered  by  the  defendant  for  the  purpose 
of  proving  previous  knowledge  on  the  part  of  the  plaintiff  of  a 
limitation  as  to  the  extent  of  damages  for  which  the  defend- 
ant would  contract  to  be  answerable  for  any  injury  that  might 
be  sustained  in  the  course  of  its  service.  Such  condition  was 
printed  at  the  foot  of  its  blank  delivery  tickets.  But  it  was 
not  shown  that  there  was  any  contract  in  this  case,  by  ticket 
or  otherwise,  containing  any  such  limitation  of  liability,  and 
the  evidence  offered  was  therefore  rejected,  and  we  think  prop- 
erly so. 

Upon  the  whole  evidence,  the  court  instructed  the  jury,  upon 
request  of  the  plaintiff,  that  if  they  found  from  the  evidence 
that  the  defendant  undertook,  for  a  reward,  to  deliver  the  team 
of  horses  and  vehicle,  as  described  in  the  evidence,  to  a  per- 
son designated  by  the  plaintiff,  and  in  the  course  of  this  un- 
dertaking intrusted  the  driving  of  the  team  to  one  who,  by 
his  negligence,  permitted  the  horses  to  run  away,  whereby  the 
plaintiff'  suffered  damage,  then  the  plaintiff  was  entitled  to 
recover,  and  the  jury  should  allow  such  damages  as  they  might 
find,  from  the  CAddence,  the  plaintiff  suffered  by  reason  of  the 
defendant's  default  in  the  premises. 

The  defendant  offered  six  prayers,  all  of  which  were  rejected 
by  the  court.     He  also  moved  the  court  to  exclude  from  the 

157 


§  47  OF  LOCATIO  OPEEIS, 

jury  all  the  evidence  on  the  part  of  the  plaintiff  which  related 
to  the  injury  of  the  surrey  wagon,  and  the  expense  incurred 
in  repairing  the  same.  And  to  the  refusal  of  its  prayers,  and 
the  motion  to  exclude  the  evidence,  as  well  as  to  the  instruction 
given  by  the  court  to  the  jury,  the  defendant  excepted. 

This  is  a  case  of  bailment  for  hire;  but  the  defendant  did 
not,  by  its  undertaking,  incur  the  liability  of  a  common  car- 
rier. This  species  of  bailment  is  included  in  what  Lord  Holt, 
.  in  the  leading  case  of  Coggs  v.  Bernard,  2  Ld.  Kaym.  917,  clas- 
sifies as  the  fifth  sort,  viz.,  "a  delivery  to  carry  or  otherwise 
manage,  for  a  reward  to  be  paid  to  the  bailee, ' '  and  as  to  which, 
said  Lord  Holt,  the  cases  are  of  two  sorts,  "either  a  delivery 
to  one  that  exercises  a  public  employment,  or  a  delivery  to  a 
private  person.  First,  if  it  be  to  a  person  of  the  first  sort,  and 
he  is  to  have  a  reward,  he  is  bound  to  answer  for  the  goods  at 
all  events."  But  as  to  the  second  sort  he  says  'Hhey  are 
bailiffs,  factors,  and  such  like,"  in  which  case  the  bailee  is  only 
bound  to  take  reasonable  care;  and  "the  true  reason  of  the 
case  is,"  says  the  learned  judge,  "it  would  be  unreasonable  to 
charge  him  with  a  trust  further  than  the  nature  of  the  thing 
puts  it  in  his  power  to  perform  it."  And  so  Judge  Story,  in  his 
work  on  bailments,  section  457,  founding  his  text  principally 
upon  Lord  Holt's  classification,  states  the  same  distinction. 
He  says:  "Every  such  private  person  is  bound  to  ordinary 
diligence,  and  to  a  reasonable  exercise  of  skill;  and  of  course 
he  is  not  responsible  for  any  losses  not  occasioned  by  the  ordi- 
nary negligence  of  himself  or  his  servants.  He  will  not,  there- 
fore, be  liable  for  any  loss  by  thieves,  or  for  any  taking  from 
him  or  them  by  force,  or  where  the  owner  accompanies  the 
goods  to  take  care  of  them,  and  is  himself  guilty  of  negligence. 
This  is  the  general  rule;  and  it  of  course  applies  to  all  cases 
where  he  has  not  assumed  the  character  of  a  common  carrier, 
unless,  indeed,  he  has  expressly,  by  the  terms  of  his  contract, 
taken  upon  himself  any  such  risk."  The  application  of  the 
principle  of  this  species  of  bailment,  and  the  extent  of  the 
liability  of  the  bailee,  are  well  explained  and  illustrated  by 
the  cases  of  Newton  v.  Pope,  1  Cow.  109 ;  Brind  v.  Dale,  8  Car. 
&  P.  207 ;  and  Searle  v.  Laverick,  L.  R.  9  Q.  B.  122 ;  and  those 
cases  show  that  if  negligence  or  want  of  skill  in  the  bailee  or 
his  servant  be  the  ground  of  action,  the  onus  of  proof  is  on 
the  plaintiff. 

The  instruction  granted  by  the  court  is  based  exclusively 
upon  the  alleged  negligence  of  the  boy  in  driving  the  horses. 
There  was  evidence  tending  to  prove  such  negligence,  and  we 
perceive  no  error  in  the  instruction.     The  boy  was  furnished 

158 


MOENINGSTAE  v.  CUNNINGHAM.  §§  47,  48 

from  the  defendant's  office  to  take  charge  of  and  to  drive  the 
team  of  horses  to  the  livery-stable,  and  having  assumed  the  duty 
for  a  reward,  the  defendant  was  bound  to  furnish  a  driver  both 
competent  and  careful. 

Nor  do  we  perceive  that  there  was  any  error  committed  by 
the  court  in  refusing  to  exclude  from  the  consideration  of  the 
jury  the  evidence  in  regard  to  the  damage  done  to  the  surrey 
wagon,  and  the  expense  of  its  repair.  It,is  true,  the  plaintiff 
was  not  the  general  owner  of  the  wagon,  but  having  hired  the 
vehicle,  he  was  bailee,  and  as  such  he  had  a  special  property 
in  it,  which  entitled  him  to  recover  for  any  injury  to  it,  as 
against  a  party  without  title.  He  was  answerable  to  the  gen- 
eral owner,  and  was  therefore  entitled  to  recover  of  the  de- 
fendant to  the  full  extent  of  the  injury  to  the  vehicle  caused 
by  the  negligent  act  of  the  defendant's  servant:  Harker  v.  De- 
ment, 9  Gill,  7,  13 ;  52  Am.  Dec.  670. 

With  respect  to  the  prayers  offered  by  the  defendant,  we 
think  there  was  no  error  in  rejecting  them.  The  instruction 
actually  given  by  the  court  was  as  favorable  to  the  defendant 
as  any  that  could  well  have  been  given,  upon  the  facts  of  the 
case,  and  which  instruction  rendered  it  wholly  unnecessary 
to  grant  the  second  and  third  prayers  of  the  defendant;  as  by 
the  instruction  given  the  defendant  was  only  held  to  that 
degree  of  care  to  which  an  ordinary  bailee  for  hire  is  liable.  And 
as  to  the  other  prayers,  clearly,  in  view  of  what  we  have  said  in 
regard  to  the  nature  of  the  liability  of  the  defendant,  there 
was  no  error  in  rejecting  them.  The  judgment  must  therefore 
be  affirmed. 


>C48.    MORNINGSTAR  V.  CUNNINGHAM, 

110  hid.  328;.  11  N.  E.  B.  593;  59  Am.  R.  211.    1886. 

Action  on  a  note  and  mortgage.  Defendant,  Morningstar, 
agreed  with  Henderson,  Parks  &  Co.,  pork-packers,  that  if  they 
would  advance  the  money  he  would  buy  and  deliver  to  them  for 
slaughter  fat  hogs.  They  were  to  prepare  the  same  for  market, 
sell  on  defendant's  account,  reimburse  themselves  for  the  money 
advanced  and  account  to  defendant  for  the  balance.  They  fur- 
nished $25,000,  but  pork  declined  so  that  a  sale  then  would  not 
reimburse  them  for  the  money  advanced.  Accordingly  they  ad- 
vised Morningstar  to  execute  to  them  the  note  and  mortgage  in 
suit,  and  hold  the  product  for  a  rise  in  the  market.     Morning- 

159 


§  48  OF  LOCATIO  OPEEIS. 

star  charged  that  the  packers  had  confused  his  product  with 
their  own,  thus  converting  his  property  of  a  value  greater  than 
the  amount  of  the  note.  To  this  it  was  replied  that  there  was 
no  agreement  to  keep  defendant's  product  separate,  that  his 
entire  product  had  been  accounted  for,  and  that  it  fell  short 
by  $10,000  of  the  amount  advanced  under  the  contract.  Judg- 
ment for  plaintiffs  for  $8,000. 

Mitchell,  J.  (After  stating  the  facts.)  During  the  progress 
of  the  trial  the  plaintiffs  were  permitted  to  prove  that  accord- 
ing to  the  usual  course  of  business,  it  was  and  always  had  been 
the  usage  of  the  packing  house  of  Henderson,  Parks  &  Co.  to 
retain  certain  portions  of  hogs  packed  by  them,  such  as  the 
bristles,  feet,  fat  from  the  entrails,  and  other  oft'al,  as  compensa- 
tion for  slaughtering  and  cleaning  the  hogs,  and  placing  them 
upon  the  hooks  to  cool,  and  afterward  cutting  them  up. 

Evidence  was  also  given  over  objection,  tending  to  prove  that 
the  usage  above  mentioned  was  the  common  usage  prevalent  in 
other  similar  packing  houses  in  the  State  of  Indiana,  and  that 
the  retention  of  the  offal  was  but  reasonable  compensation. 

The  plaintiff  also  offered  evidence  tending  to  prove  that  the 
term  "product"  as  applied  to  the  pork-packing  business,  had  a 
known  meaning  peculiar  to  the  trade,  and  did  not  include  such 
parts  of  slaughtered  hogs  as  are  mentioned  above.  Other  evi- 
dence involving  similar  principles  was  admitted. 

It  is  to  be  observed  that  the  contract,  out  of  which  the  con- 
troversy arose,  was  oral,  and  the  evidence  was  such  as  to  leave 
the  terms  and  meaning  of  the  agreement  ambiguous.  In  such 
eases,  evidence  of  the  known  and  usual  course  of  a  particular 
trade  or  business  is  competent,  with  a  view  of  raising  a  pre- 
sumption that  the  transaction  in  question  was  according  to  the 
ordinary  and  usual  course  of  the  business  to  which  it  related. 
Lyon  V.  Lenon,  106  Ind.  567,  7  N.  E.  R.  311 ;  Mand  v.  Trail,  92 
Ind.  521,  47  Am.  Eep.  163;  Wallace  v.  Morgan,  23  Ind.  399; 
Lonergan  v.  Stewart,  55  111.  44;  Jonsson  v.  Thompson,  97  N. 
Y..642. 

It  is  not  essential  that  such  a  usage  should  be  shown  to  be  so 
ancient  ' '  that  the  memory  of  man  runneth  not  to  the  contrary, ' ' 
nor  that  it  should  contain  all  the  other  elements  of  a  common- 
law  custom,  as  defined  in  the  books.  1  Cooley  Bl.  Com.  76,  and 
note. 

The  distinction  between  a  usage  of  trade  and  a  common-law 
custom  has  not  always  been  observed.  A  custom  is  something 
which  has  by  its  universality  and  antiquity  acquired  the  force 
and  effect  of  law,  in  a  particular  place  or  country,  in  respect  to 

160 


MOENINGSTAE  v.  CUNNINGHAM.  §  48 

the  subject-matter  to  which  it  relates,  and  is  ordinarily  taken 
notice  of  without  proof.  Thus  when  a  payee  indorses  his  name 
on  the  back  of  a  promissory  note,  the  law  by  force  of  a  pervad- 
ing and  universal  custom,  imports  a  well-recognized  contract 
into  the  transaction.  Smji;he  v.  Scott,  106  Ind.  245,  6  N.  E.  R. 
145 ;  Walls  V.  Bailey,  49  N.  Y.  464,  10  Am.  Rep.  407 ;  Hursh  v. 
North,  40  Penn.  St.  241 ;  Munn  v.  Burch,  25  111.  21. 

Many  other  examples  of  such  customs  might  be  given.  They 
are  distinguishable  from  a  usage,  such  as  concerns  us  here. 
Where  a  usage  in  a  particular  trade  or  business  is  known,  uni- 
form, reasonable,  and  not  contrary  to  law,  or  opposed  to  public 
policy,  evidence  of  such  usage  may  be  considered  in  ascertain- 
ing the  otherwise  uncertain  meaning  of  a  contract,  unless  the 
proof  of  such  usage  contradicts  the  express  terms  of  the  agree- 
ment. This  is  so  even  though  the  usage  be  that  of  a  particular 
person,  provided  it  be  known  to  the  parties  concerned, 
or  provided  it  has  been  so  long  continued,  or  has  become 
so  generally  known  and  notorious  in  the  place  or  neighborhood, 
as  to  justify  the  presumption  that  it  must  have  been  known  to 
the  parties.  Carter  v.  Philadelphia  Coal  Co.,  77  Penn.  St.  286; 
Townsend  v.  Whitby,  5  Harr.  (Del.)  55;  McMasters  v.  Penn- 
sylvania R.  Co.,  69  Penn,  St.  374,  8  Am,  Rep.  264;  Lawson 
Usages,  40. 

Parties  who  are  engaged  in  a  particular  trade  or  business,  or 
persons  accustomed  to  deal  with  those  engaged  in  a  particular 
business,  may  be  presumed  to  have  knowledge  of  the  uniform 
course  of  such  business.  Its  usages  may  therefore  in  the  absence 
of  an  agreement  to  the  contrary,  reasonably  be  supposed  to  have 
entered  into  and  formed  part  of  their  contracts  and  understand- 
ings in  relation  to  such  business,  as  ordinary  incidents  thereto. 
East  Tennessee,  etc.,  R.  Co.  v.  Johnston,  75  Ala.  596,  51  Am, 
Rep,  489 ;  ]\Iooney  v.  Howard  Ins,  Co.,  138  Mass.  375 ;  52  Am. 
Rep.  277;  Florence  Machine  Co.  v,  Dagget,  135  Mass.  582;  Fit- 
zimmons  v.  Academy,  etc.,  81  Mo,  37 ;  Cooper  v.  Kane,  19  Wend, 
386,  32  Am.  Dec.  512;  Kelton  v,  Taylor,  11  Lea,  264,  47  Am, 
Rep.  284;  7  Cent.  L.  J.  383. 

Thus  where  it  was  the  uniform  usage  of  a  firm  to  extend  a 
definite  credit,  on  the  sale  of  goods,  it  was  held  competent,  in 
order  to  avoid  the  statute  of  limitations,  to  prove  such  usage, 
and  that  the  purchaser  knew  it.  Hursh  v.  North,  supra.  So 
in  Walls  v,  Bailey,  supra,  it  was  held  competent  to  show  the 
usage  of  plasterers  in  a  particular  place,  in  order  to  determine 
the  method  of  measuring  plastering  done  under  a  contract  which 
stipulated  that  a  certain  price  per  yard  should  be  paid.  See  also 
Lowe  v.  Lerman,  15  Ohio  St,  179 ;  Hinton  v,  Locke,  5  Hill,  437 ; 
^1  161 


§  48  OF  LOCATIO  OPEEIS. 

Barton  v.  McKelway,  2  Zab.  (22  N.  J.)  165;  Ford  v.  Tirrell,  9 
Gray,  401,  69  Am.  Dec.  297. 

In  like  manner  it  is  competent  to  prove  that  the  words  in 
which  a  contract  is  expressed,  as  respects  the  particular  trade 
or  business  to  which  it  refers,  are  used  in  a  peculiar  sense,  and 
different  from  their  ordinary  import.  Jaqua  v.  Witham,  etc., 
Co.,  106  Ind.  545  7  N.  E.  R.  314;  Spartali  v.  Benecke,  10  C. 
B.  212. 

The  evidence,  the  admission  of  which  is  complained  of,  was 
not  admitted  for  the  purpose  of  showing  a  custom  in  the  tech- 
nical sense,  but  to  show  the  general  course  and  usage  of  the 
business,  as  it  was  conducted  by  Henderson,  Parks  &  Co.  and 
others,  so  as  to  authorize  the  presumption,  in  the  absence  of  a 
special  contract,  that  the  transaction  in  question  was  accord- 
ing to  the  usual  course  of  the  business  to  which  it  referred. 

There  was  evidence  tending  to  show  that  the  defendant  had 
knowledge  of  the  usage  in  question,  that  he  had  dealt  with  the 
firm  of  Henderson,  Parks  &  Co.,  in  respect  to  packing  and 
slaughtering  hogs  before.  It  was  also  shown  that  the  usage  was 
reasonable,  and  that  it  had  been  adopted  generally  by  packing 
houses,  as  the  only  practical  method  of  conducting  the  business. 

Wliere  the  only  practical  method  of  conducting  a  business, 
such  as  receiving  and  storing  wheat,  and  other  articles  of  com- 
merce, is  to  render  to  each  bailor  the  amount  of  goods  stored, 
in  kind  and  quality,  it  is  not  a  conversion  of  the  goods  bailed, 
if  the  bailee  treat  them  according  to  the  known  and  usual  method 
of  conducting  such  business.  To  constitute  a  conversion,  the 
bailee's  dealing  with  the  property  must  have  been  wholly  incon- 
sistent with  the  contract  under  which  he  had  the  limited  in- 
terest. Rice  V.  Nixon,  97  Ind.  97,  49  Am.  Rep.  430;  Preston 
v.  Witherspoon,  109  Ind.  457,  9  N.  E.  R.  585 ;  Pollock  Torts,  296. 

It  was  competent  therefore  in  the  absence  of  an  agreement  to 
the  contrary,  to  show  that  according  to  the  course  of  business  at 
their  pork-house,  Henderson,  Parks  &  Co.  did  not  keep  the  prod- 
uct of  each  customer's  hogs  separate,  but  that  they  accounted 
in  kind,  quantity  and  quality  to  each,  according  to  known,  reas- 
onable and  recognized  rules. 

The  other  evidence  in  respect  to  the  usage,  in  pursuance  of 
which  certain  offal  was  retained  as  compensation,  was  also  prop- 
erly admitted. 

The  judgment  is  affirmed,  with  costs. 


162 


SHAW  V.  EAILROAD  CO.  §  49 

f^49.     SHAW  V.  EAILROAD  CO., 

101  XJ.  8.  557.     1879. 

Error  to  the  Circuit  Court  of  the  United  States  for  the 
Eastern  District  of  Pennsylvania. 

This  is  an  action  of  replevin  brought  by  the  Merchants'  Na- 
tional Bank  of  St.  Louis,  Missouri,  against  Shaw  &  Esrey,  of 
Philadelphia,  Pennsylvania,  to  recover  possession  of  certain  cot- 
ton, marked  "W  D  I."  One  hundred  and  forty-one  bales 
thereof  having  been  taken  possession  of  by  the  marshal  were 
returned  to  the  defendants  upon  their  entering  into  the  proper 
bond.  On  Nov.  11,  1874,  Norvell  &  Co.,  of  St.  Louis,  sold  to 
the  bank  their  draft  for  $11,947.43  on  M.  Kuhn  &  Brother,  of 
Philadelphia,  and,  as  collateral  security  for  the  payment  thereof 
indorsed  in  blank  and  delivered  to  the  bank  an  original  bill  of 
lading  for  one  hundred  and  seventy  bales  of  cotton  that  day 
shipped  to  the  last-named  city.  The  duplicate  bill  of  lading 
was  on  the  same  day  forwarded  to  Kuhn  &  Brother  by  Norvell 
&  Co.  The  Merchants'  Bank  forwarded  the  draft,  with  the  bill 
of  lading  thereto  attached,  to  the  Bank  of  North  America.  On 
November  14,  the  last-named  bank  sent  the  draft — the  original 
bill  of  lading  still  being  attached  thereto — to  Kuhn  &  Brother 
by  its  messenger  for  acceptance.  The  messenger  presented  the 
draft  and  bill  to  one  of  the  members  of  that  firm,  who  accepted 
the  former,  but,  without  being  detected,  substituted  the  dupli- 
cate for  the  original  bill  of  lading. 

On  the  day  upon  which  this  transaction  occurred,  Kuhn  & 
Brother  indorsed  the  original  bill  of  lading  to  Miller  &  Brother, 
and  received  thereon  an  advance  of  $8,500.  Within  a  few  days 
afterwards,  the  cotton,  or  rather  that  portion  of  it  which  is 
in  controversy,  was,  through  the  agency  of  a  broker,  sold  by 
sample  with  the  approval  of  Kuhn  &  Brother  to  the  defendants, 
who  were  manufacturers  at  Chester,  Pennsylvania.  The  bill 
of  lading,  having  been  deposited  on  the  same  day  with  the 
North  Pennsylvania  Railroad  Company,  at  whose  depot  the 
cotton  was  expected  to  arrive,  it  was  on  its  arrival  delivered  to 
the  defendants. 

The  fact  that  the  Bank  of  North  America  held  the  duplicate 
instead  of  the  original  bill  of  lading  was  discovered  for  the  first 
time  on  the  9th  of  December,  by  the  president  of  the  plaintiff, 
who  had  gone  to  Philadelphia  in  consequence  of  the  failure  of 
Kuhn  &  Brother  and  the  protest  of  the  draft.  Judgment  for 
plaintiff. 

163 


§  49  OF  LOCATIO  OPEEIS. 

Strong,  J.  The  defendants  below,  now  plaintiffs  in  error, 
bought  the  cotton  from  Miller  &  Brother  by  sample,  through  a 
cotton  broker.  No  bill  of  lading  or  other  written  evidence  of 
title  in  their  vendors  was  exhibited  to  them.  Hence,  they  can 
have  no  other  or  better  title  than  their  vendors  had. 

The  inquiry,  therefore,  is,  what  title  had  Miller  &  Brother  as 
against  the  bank,  which  confessedly  was  the  owner,  and  which 
is  still  the  owner,  unless  it  has  lost  its  ownership  by  the  fraud- 
ulent act  of  Kuhn  &  Brother.  The  cotton  was  represented  by 
the  bill  of  lading  given  to  Norvell  &  Co.,  at  St.  Louis,  and  by 
them  indorsed  to  the  bank,  to  secure  the  payment  of  an  ac- 
companying discounted  time-draft.  That  indorsement  vested 
in  the  bank  the  title  to  the  cotton,  as  well  as  to  the  contract. 
While  it  there  continued,  and  during  the  transit  of  the  cotton 
from  S.  Louis  to  Philadelphia,  the  endorsed  bill  of  lading  was 
stolen  by  one  of  the  firm  of  Kuhn  &  Brother,  and  by  them 
indorsed  over  to  Lliller  &  Brother,  for  an  advance  of  $8,500. 
The  jury  has  found,  however,  that  there  was  no  negligence  of 
the  bank,  or  of  its  agents,  in  parting  with  possession  of  the  bill 
of  lading,  and  that  Miller  &  Brother  knew  facts  from  which 
they  had  reason  to  believe  it  was  held  to  secure  the  payment  of 
an  outstanding  draft;  in  other  words,  that  Kuhn  &  Brother 
were  not  the  lawful  owners  of  it,  and  had  no  right  to  dispose 
of  it. 

It  is  therefore  to  be  determined  whether  Miller  &  Brother, 
by  taking  the  bill  of  lading  from  Kuhn  &  Brother  under  these 
circumstances,  acquired  thereby  a  good  title  to  the  cotton  as 
against  the  bank. 

In  considering  this  question,  it  does  not  appear  to  us  necessary 
to  inquire  whether  the  effect  of  the  bill  of  lading  in  the  hands 
of  Miller  &  Brother  is  to  be  determined  by  the  law  of  Missouri, 
where  the  bill  was  given,  or  by  the  law  of  Pennsylvania,  where 
the  cotton  was  delivered.  The  statutes  of  both  States  enact 
that  bills  of  lading  shall  be  negotiable  by  indorsement  and  deliv- 
ery. The  statute  of  Pennsylvania  declares  simply,  they  "shall 
be  negotiable  and  may  be  transferred  by  indorsement  and  deliv- 
ery;" while  that  of  Missouri  enacts  that  "they  shall  be  negoti- 
able by  written  indorsement  thereon  and  delivery,  in  the  same 
manner  as  bills  of  exchange  and  promissory  notes."  There  is 
no  material  difference  between  these  provisions.  Both  statutes 
prescribe  the  manner  of  negotiation;  i.  e.,  by  indorsement  and 
delivery.  Neither  undertakes  to  define  the  effect  of  such  a 
transfer. 

We  must,  therefore,  look  outside  of  the  statutes  to  learn  what 
they  mean  by  declaring  such  instruments  negotiable.     What 

164 


SHAW  V.  EAILEOAD  CO.  §49 

is  negotiability?  It  is  a  technical  term  derived  from  the  usage 
of  merchants  and  bankers,  in  transferring,  primarily,  bills  of 
exchange  and,  afterwards,  promissory  notes.  At  common  law- 
no  contract  was  assignable,  so  as  to  give  to  an  assignee  a  right 
to  enforce  it  by  suit  in  his  own  name.  To  this  rule  bills  of 
exchange  and  promissory  notes,  payable  to  order  or  bearer,  have 
been  admitted  exceptions,  made  such  by  the  adoption  of  the 
law  merchant.  They  may  be  transferred  by  indorsement  and 
delivery,  and  such  a  transfer  is  called  negotiation.  It  is  a 
mercantile  business  transaction,  and  the  capability  of  being  thus 
transferred,  so  as  to  give  to  the  indorsee  a  right  to  sue  on  the 
contract  in  his  own  name,  is  what  constitutes  negotiability.  The 
term  "negotiable"  expresses,  at  least  primarily,  this  mode  and 
effect  of  a  transfer. 

In  regard  to  bills  and  notes,  certain  other  consequences  gen- 
erally, though  not  always,  follow.  Such  as  a  liability  of  the 
indorser,  if  demand  be  duly  made  of  the  acceptor  or  maker, 
and  seasonable  notice  of  his  default  be  given.  So  if  the  indorse- 
pient-  be  made  for  value  to  a  bona  fide  holder,  before  the  matu- 
rity of  the  bill  or  note,  in  due  course  pf. business,,  the  maker 
or  acceptor  cannot  set  up  against  the  indorsee  any  defense  which 
might  have  been  set  up  against  the  payee,  had  the  bill  or  note  re- 
mained in  his  hands. 

So,  also,  if  a  note  or  bill  of  exchange  be  indorsed  in  blank,  if 
payable  to  order,  or  if  it  be  payable  to  bearer,  and  therefore 
negotiable  by  delivery  alone,  and  then  be  lost  or  stolen,  a  bona 
fide  purchaser  for  value  paid  acquires  title  to  it,  even  as  against 
the  true  owner.  This  is  an  exception  from  the  ordinary  rule 
respecting  personal  property.  But  none  of  these  consequences 
are  necessary  attendants  or  constituents  of  negotiability,  or 
negotiation.  That  may  exist  without  them.  A  bill  or  note 
past  due  is  negotiable,  if  it  be  payable  to  order,  or  bearer,  but 
its  indorsement  or  delivery  does  not  cut  off  the  defences  of  the 
maker  or  acceptor  against  it,  nor  create  such  a  contract  as  re- 
sults from  an  indorsement  before  maturity,  and  it  does  not  give 
to  the  purchaser  of  a  lost  or  stolen  bill  the  right  of  the  real 
owner. 

It  does  not  necessarily  follow,  therefore,  that  because  a  statute 
has  made  bills  of  lading  negotiable  by  indorsement  and  delivery, 
all  these  consequences  of  an  indorsement  and  delivery  of  bills 
and  notes  before  maturity  ensue  or  are  intended  to  result  from 
such  negotiation. 

Bills  of  exchange  and  promissory  notes  are  exceptional  in 
their  character.  They  are  representatives  of  money,  circulating 
in  the  commercial  world  as  evidence  of  money,  "of  which  any 

165 


§  49  OF  LOCATIO  OPEKIS. 

person  in  lawful  possession  may  avail  himself  to  pay  debts  or 
make  purchases  or  make  remittances  of  money  from  one  country 
to  another,  or  to  remote  places  in  the  same  country.  Hence,  as 
said  by  Story,  J.,  it  has  become  a  general  rule  of  thp  commer- 
cial world  to  hold  bills  of  exchange,  as  in  some  sort,  sacred 
instrument  in  favor  of  bona  fide  holders  for  a  valuable  consider- 
ation without  notice."  Without  such  a  holding  they  could  not 
perform  their  peculiar  functions.  It  is  for  this  reason  it  is  held 
that  if  a  bill  or  note,  endorsed  in  blank  or  payable  to  bearer, 
be  lost  or  stolen,  and  be  purchased  from  the  finder  or  thief, 
without  any  knowledge  of  want  of  ownership  in  the  vendor,  the 
bona  fide  purchaser  may  hold  it  against  the  true  owner.  He 
may  hold  it  though  he  took  it  negligently,  and  when  there  were 
suspicious  circumstances  attending  the  transfer.  Nothing  short 
of  actual  or  constructive  notice  that  the  instrument  is  not  the 
property  of  the  i)erson  who  offers  to  sell  it;  that  is,  nothing_ 
short  of  mala  fides  will  defeat  his  right.  The  rule  is  the  same 
as  that  which  protects  the  bona  fide  indorser  of  a  bill  or  note 
purchased  for  value  from  the  true  owner.  The  purchaser  is  not 
bound  to  look  beyond  the  instrument.  Goodman  v.  Harvey,  4 
Ad.  &  E.  870;  Goodman  v.  Simonds,  20  How.  343;  Murray  v. 
Lardner,  2  Wall.  110;  Matthews  v.  Poythress,  4  Ga.  287.  The 
rule  was  first  applied  to  the  case  of  a  lost  bank-note  (Miller  v. 
Kace,  1  Burr.  452),  and  put  upon  the  ground  that  the  interests 
of  trade,  the  usual  course  of  business,  and  the  fact  that  bank- 
notes pass  from  hand  to  hand  as  coin,  require  it.  It  was  subse- 
quently held  applicable  to  merchants'  drafts,  and  in  Peacock 
V.  Rhodes  (2  Doug.  633)  to  bills  and  notes  as  coming  within 
the  same  reason. 

The  reason  can  have  no  application  to  the  case  of  a  lost  or 
stolen  bill  of  lading.  The  function  of  that  instrument  is  en- 
tirely different  from  that  of  a  bill  or  note.  It  is  not  a  repre- 
sentative of  money,  used  for  transmission  of  money,  or  for  the 
payment  of  debts  or  for  purchases.  It  does  not  pass  from  hand 
to  hand  as  bank-notes  or  coin.  It  is  a  contract  for  the  perform- 
ance of  a  certain  duty.  True,  it  is  a  symbol  of  ownership  of  the 
goods  covered  by  it, — a  representative  of  those  goods.  But  if  the 
goods  themselves  be  lost  or  stolen,  no  sale  of  them  by  the  finder 
or  thief,  though  to  a  bojia  fide  purchaser  for  value,  will  divest 
the  ownership  of  the  person  who  lost  them.  Or  from  whom  they 
were  stolen.  Why  then  should  the  sale  of  the  symbol  or  mere 
representative  of  the  goods  have  such  an  effect?  It  may  be 
that  the  true  owner  by  his  negligence  or  carelessness  may  have 
put  it  in  the  power  of  a  finder  or  thief  to  occupy  ostensibly  the 
position  of  a  true  owner,  and  his  carelessness  may  estop  him 

166 


SHAW  V.  KAILROAD  CO.  §  49 

from  asserting  his  right  against  a  purchaser  who  has  been  mis- 
led to  his  hurt  by  that  carelessness.  But  the  present  is  no 
such  case.  It  is  established  by  the  verdict  of  the  jury  that  the 
bank  did  not  lose  its  possession  of  the  bill  of  lading  negligently. 
There  is  no  estoppel,  therefore,  against  the  bank's  right. 

Bills  of  lading  are  regarded  as  so  much  cotton,  grain,  iron, 
or  other  articles  of  merchandise.  The  merchandise  is  very 
often  sold  or  pledged  by  the  transfer  of  the  bills  which  cover 
it.  They  are,  in  commerce,  a  very  different  thing  from  bills  of 
exchange  and  promissory  notes,  answering  a  different  purpose 
and  performing  different  functions.  It  cannot  be,  therefore, 
that  the  statute  which  made  them  negotiable  by  indorsement 
and  delivery,  or  negotiable  in  the  same  manner  as  bills  of  ex- 
change and  promissory  notes  are  negotiable,  intended  to  change 
totally  their  character,  put  them  in  all  respects  on  the  footing 
of  instruments  which  are  the  representatives  of  money,  and 
charge  the  negotiation  of  them  with  all  the  consequences  which 
usually  attend  or  follow  the  negotiation  of  bills  and  notes. 
Some  of  these  consequences  would  be  very  strange  if  not  im- 
possible. Such  as  the  liability  of  indorsers,  the  duty  of  demand 
ad  diem,  notice  of  non-delivery  by  the  carrier,  &c.,  or  the  loss 
of  the  owner 's  property  by  the  fraudulent  assignment  of  a  thief. 
If  these  were  intended,  surely  the  statute  would  have  said 
something  more  than  merely  make  them  negotiable  by  indorse- 
ment. No  statute  is  to  be  construed  as  altering  the  common 
law,  farther  than  its  words  import.  It  is  not  to  be  construed 
as  making  any  innovation  upon  the  common  law  which  it  does 
not  fairly  express.  Especially  is  so  great  an  innovation  as 
would  be  placing  bills  of  lading  on  the  same  footing  in  all 
respects  with  bills  of  exchange  not  to  be  inferred  from  words 
that  can  be  fully  satisfied  without  it.  The  law  has  most  care- 
fully protected  the  ownership  of  personal  property,  other  than 
money,  against  misappropriation  by  others  than  the  owner,  even 
when  it  is  out  of  his  possession.  This  protection  would  be 
largely  withdrawn  if  the  misappropriation  of  its  symbol  or 
representative  could  avail  to  defeat  the  ownership,  even  when 
the  person  who  claims  under  a  misappropriation  had  reason 
to  believe  that  the  person  from  whom  he  took  the  property  had 
no  right  to  it. 

We  think,  therefore,  that  the  rule  asserted  in  Goodman  v. 
Harvey,  Goodman  v.  Simonds,  Murray  v.  Lardner  (supra),  and 
in  Phelan  v.  Moss  (67  Pa.  St.  59,  5  Am.  R.  402),  is  not  applica- 
ble to  a  stolen  bill  of  lading.  At  least  the  purchaser  of  such  a 
bill,  with  reason  to  believe  that  his  vendor  was  not  the  owner  of 
the  bill,  or  that  it  was  held  to  secure  the  payment  of  an  outstand. 

167 


§  49  OF  LOCATIO  OPEEIS. 

ing  draft,  is  not  a  bona  fide  purchaser,  and  he  is  not  entitled  to 
hold  the  merchandise  covered  by  the  bill  against  its  true  owner. 
In  th  present  case  there  was  more  than  mere  negligence  on 
the  part  of  Miller  &  Brother,  more  than  mere  reason  for  sus- 
picion. There  was  reason  to  believe  Kuhn  &  Brother  had  no 
right  to  negotiate  the  bill.  This  falls  very  little,  if  any,  short 
of  knowledge.  It  may  fairly  be  assumed  that  one  who  has 
reason  to  believe  a  fact  exists,  knows  it  exists.  Certainly,  if 
he  be  a  reasonable  being. 

(Omitting  some  minor  considerations.)     Judgment  affirmed. 


168 


PART  m 
OF  EXTRAORDINARY   BAILMENTS 


CHAPTER  IX. 

OF  ESTNS  AND  INNKEEPERS. 

N^50.    KISTEN  V.  HILDEBRAND. 

9  B.  Monroe  (Ky.)  72;  48  Am.  D.  416.    1848. 

Case,  against  defendant  as  an  innkeeper.  Verdict  for  plain- 
tiff.   Error  sued  out  by  defendant. 

By  Court,  Marshall,  C.  J.  This  action  on  the  case  was 
brought  to  recover  from  Kisten,  as  an  innkeeper,  a  large  sum 
of  money  alleged  to  have  been  taken,  through  the  default  and 
negligence  of  the  defendant,  his  servants,  etc.,  from  the  trunk  of 
the  plaintiff,  in  the  inn  of  the  defendant,  he,  the  plaintiff,  be- 
ing then  a  guest  therein.  The  form  of  proceeding  against  inn- 
keepers in  England,  upon  the  custom  of  the  realm,  seems  to  have 
been  substantially  pursued.  The  declaration  sets  out  as  the 
foundation  of  the  action,  that  "by  the  custom  and  law  of  this 
commonwealth,  innkeepers  who  keep  common  inns  for  enter- 
taining men  traveling  through  those  parts  where  those  inns  are, 
and  in  the  same  abiding  their  goods  and  chattels  and  money, 
within  those  inns  being,  are  bound  to  keep,  day  and  night, 
without  diminution  or  loss,  so  that  through  the  default  of  the  said 
innkeepers,  or  their  servants,  damage  to  such  guests  might  not, 
in  any  manner,  happen,"  etc.,  and  alleges  that  through  the  de- 
fault of  the  defendant  and  his  servants,  the  money  was  taken 
and  carried  away  by  certain  malefactors.  A  demurrer  to  the 
declaration  was  overruled,  and  a  trial  being  had  on  the  plea  of 
not  guilty,  filed  with  the  demurrer,  a  verdict  for  three  hundred 
dollars  was  found  against  the  defendant,  who  prosecutes  this 
writ  of  error  for  the  reversal  of  the  judgment  rendered  upon  it. 

As  the  custom  of  the  realm  of  England,  with  regard  to  inns 
and  innkeepers,  and  the  liability  of  the  latter,  was  a  general 
custom,  and  therefore,  a  part  of  the  common  law,  we  assume 

169 


§  50  OF  INNS  AND  INNKEEPEES. 

that  so  far  as  it  is  applicable  and  not  inconsistent  with  our  own 
local  laws  and  usages,  it  is  also  a  part  of  the  common  law  of  this 
state.  Under  this  assumption  we  are  of  opinion  that  taking 
into  view  the  preamble  to  the  declaration,  in  which  the  defend- 
ant is  charged  to  be  an  innkeeper,  a  cause  of  action  under  the 
law  set  forth,  is  substantially  shown.  The  demurrer  to  the  dec- 
laration was,  therefore,  properly  overruled — and  we  only  remark 
further,  that  it  is  no  more  necessary  in  this  than  in  other  cases, 
to  set  out  the  law  of  the  land  on  which  the  action  is  founded. 
The  law  with  regard  to  the  liability  of  innkeepers  being  one  of 
extreme  rigor,  it  is  essential  to  the  safety  of  all  persons  who  may 
be  engaged  in  the  business  of  entertaining  others  in  their  houses 
for  reward,  that  the  extent  of  its  application  should  be  clearly 
defined,  and  that  it  should  not  be  carried  beyond  its  proper 
limits.  An  innkeeper  is  prima  facie  liable  for  all  losses  which 
happen  to  the  goods  of  his  guests  in  his  inn,  all  such  being 
attributed  to  him  on  the  ground  of  public  policy,  and  the  con- 
fidence necessarily  reposed  in  him,  and  on  account  of  thii-^iffi- 
culty  of  proving  actual  negligence.  But  he  is  not  liable  if  the 
loss  be  occasioned  by  external  force  or  robbery — or  if  it  be 
attributable  to  the  neglect  of  the  guest,  or  to  the  act  of  his 
servant  or  companion.  This  being  the  extent  of  his  liability  to 
his  guests,  it  is  important  to  determine  who  is  an  innkeeper, 
and  who  may  claim  the  benefit  of  this  liability. 

It  was  laid  down  in  Calye's  Case,  8  Co.  32,  that  common  inns 
were  instituted  for  passengers  and  wayfaring  men.  And  we 
think  it  will  be  found  that  the  great  liability  imposed  upon 
them,  is  for  the  benefit  of  travelers  and  transient  persons,  who 
are  often  compelled  to  resort  to  inns  for  shelter  and  entertain- 
ment, without  the  means  of  knowing  the  character  of  the  host; 
and  without  the  opportunity  of  securing  themselves,  against 
loss  or  damage  to  their  goods.  A  common  innkeeper  is  defined 
to  be  "  a  person  who  makes  it  his  business  to  entertain  travelers- 
and  passengers,  and  provide  lodging  and  necessaries  for  them,  ^ 
and  their  horses,  and  attendants:"  Bacon's  Abr.,  Inns  and  Inn- 
keepers, B;  Story  on  Bail.,  sec.  475.  But  it  has  been  decided 
that  a  man  may  be  an  innkeeper,  and  liable  as  such,  though  he 
have  no  provision  for  horses.  It  is  not  necessary  that  he  should 
have  a  sign  indicating  that  he  is  an  innkeeper,  but  it  must  be 
his  business  to  entertain  travelers  and  passengers.  His  duty 
extends  chiefly  to  the  entertaining  and  harboring  of  travelers, 
etc.,  and  therefore,  if  one  who  keeps  a  common  inn  refuses  to 
receive  a  traveler,  or  to  find  him  in  victuals,  etc.,  for  a  reason- 
able price  (v/ithout  good  excuse,  as  that  his  house  is  full),  he  is 
liable  not  only  to  a  civil  action,  but  to  an  indictment.    For  hav- 

170 


KISTEN  V.  HILDEBEAND.  §  50 

ing  taken  upon  himself  a  public  employment,  he  must  serve  the 
public  to  the  extent  of  that  employment:  Bacon's  Abr.,  Inns 
and  Innkeepers,  c.  1. 

One  who  lodges  and  entertains  strangers  at  a  watering  place, 
who  come  to  drink  the  waters,  if  he  entertain  no  others,  is  not 
thereby  an  innkeeper:  Bacon's  Abr.,  Inns  and  Innkeepers,  B. 
So  the  keeper  of  a  coffee-house,  or  a  boarding-house,  is  not  as  such 
an  innkeeper:  Story  on  Bail.,  sec.  475.  It  must  be  a  house  kept 
open  publicly  for  the  lodging  and  entertainment  of  travelers  in 
general  for  a  reasonable  compensation :  2  Kent's  Com.  595.  And 
although  the  house  be  an  inn,  and  the  keeper  an  innkeeper,  it 
does  not  follow  that  he  is  under  the  same  liability  to  all  persons 
who  may  be  staying  at  the  inn  with  their  goods.  The  length  of 
time  that  a  man  stays  at  an  inn  does  not  make  the  difference, 
"though  he  stays  a  week,  or  a  month  or  more,  so  always  though 
not  strictly  transeuns,  he  retains  his  character  as  a  traveler:" 
Story  on  Bail.,  sec.  177;  Bacon's  Abr.,  Inns  and  Innkeepers,  c.  5. 
"But  if  a  person  comes  upon  a  special  contract  to  board  and 
sojourn  at  the  inn,  he  is  not  in  the  sense  of  the  law  a  guest,  but 
a  boarder:"  Same  authorities. 

We  greatly  doubt  whether  the  evidence  in  this  case  is  suffi- 
cient to  authorize  the  conclusion  that  the  defendant  was  an  inn- 
keeper, or  that  professedly,  or  in  point  of  fact,  he  had  assumed 
the  business  of  receiving  and  entertaining  the  traveling  public 
generally,  or  that  his  character  or  business  or  employment  was 
such  as  to  preclude  him  from  refusing  to  receive  and  entertain 
any  person  at  his  own  pleasure,  or  to  render  him  liable  either 
to  an  action  or  an  indictment  for  such  refusal,  as  the  keeper  of 
a  common  inn  may  have  inmates  of  his  house  for  a  reward,  to 
whom  he  may  not  be  under  the  strict  liability  of  an  innkeeper; 
so  may  the  keeper  of  a  boarding-house  occasionally  entertain 
transient  persons  without  acquiring  the  character,  or  being 
under  the  responsibilities  of  an  innkeeper.  And  certainly  a  man 
professing  to  be  the  keeper  of  a  boarding-house,  or  a  licensed 
coffee-house,  is  not,  though  he  also  entertain  travelers,  liable 
to  his  boarders  as  an  innkeeper  is  liable  to  his  traveling  guests. 
Conceding  then,  that  the  evidence  authorized  the  jury  to  find 
that  the  defendant  was  an  innkeeper,  because  he  occasionally 
entertained  travelers,  it  is  also  certain  that  his  professed  and 
ordinary  business  was  that  of  the  keeper  of  a  coffee-house  and 
boarding-house.  And  although  the  evidence  is  not  very  explicit 
with  regard  to  the  character  in  which  the  plaintiff  was  an  inmate 
of  the  house,  we  think  it  was  sufficient  to  authorize  the  jury  to 
infer  that  he  was  there  as  a  boarder,  and  not  as  a  traveler  or 
temporary  trader.     And  as  the  instructions  of  the  court  sub- 

171 


§  §  50,  51  OF  INNS  AND  INNKEEPEES. 

mitted  to  the  jury  as  the  decisive  question,  the  single  inquiry 
whether  the  defendant  was  an  innkeeper  or  not,  and  sustained, 
or  rather  required  a  verdict  against  him  if  he  was  so  found  to 
be,  we  think  it  was  erroneous  in  withdrawing  from  the  jury  the 
question  whether  the  plaintiff  was  a  guest  entitled  to  the  benefit 
of  the  extreme  liability  imposed  upon  an  innkeeper  in  favor  of 
travelers,  or  whether  he  was  a  mere  boarder. 

The  instructions  also  assume  that  the  plaintiff's  money  was 
taken  in  defendant's  house,  which  should  have  been  left  to  the 
jury,  although  this  assumption  is  perhaps  sufficiently  authorized 
by  the  evidence,  and  would  not  be  deemed  a  ground  of  reversal. 
We  are  also  of  opinon  that  the  definition  of  an  innkeeper,  given 
to  the  jury,  though  correct,  should  have  been  more  explicit; 
and  that,  as  the  court  told  the  jury,  that  the  calling  of  a  house 
a  coffee-house  or  a  boarding-house,  did  not  change  the  liability 
of  the  defendant  if  he  was  an  innkeeper,  they  should  also  have 
been  told,  that  the  occasional  entertainment  of  travelers  did  not 
make  a  boarding-house  or  a  coffee-house,  a  common  inn,  and 
that  if  the  plaintiff  w^as  a  boarder  and  not  a  traveler,  he  could 
not  recover  upon  the  general  liability  of  an  innkeeper.  The 
court  having  undertaken,  on  its  own  motion,  to  state  the  law  to 
the  jury,  should  have  stated  the  law  as  applicable  to  the  whole 
ease,  leaving  to  them  the  decision  of  all  questions  of  fact  arising 
on  the  evidence.  And  as  the  court  had  not  stated  the  liability 
of  an  innn-keeper,  we  think  the  incorrect  statement  of  the  plain- 
tiff's counsel,  in  his  concluding  argument  to  the  jury,  should 
have  been  corrected  at  the  request  of  the  defendant's  counsel. 

Wherefore  the  judgment  is  reversed,  and  the  case  remanded 
for  a  new  trial  in  conformity  with  this  opinion. 


51.    MOWERS  V.  FETHERS, 
61  N.  Y.  34;  19  Am.  B.  244.    1874. 

Action  for  value  of  a  stallion,  harness  and  wagon,  destroyed 
by  fire  while  in  the  barn  of  an  innkeeper.  The  owner  of  the 
stallion  contracted  for  a  stall  in  defendant's  barn,  feed  for  the 
horse  and  board  for  himself  on  certain  days  each  week.  The 
horse  stood  at  the  barn  on  these  days  to  serve  such  mares  as 
might  be  brought.  On  a  charge  that  the  relation  of  innkeeper 
and  guest  was  established  the  court  below  directed  a  verdict 
for  plaintiff,  which  was  affirmed  at  the  General  Term.  Defend- 
ant appealed. 

Reynolds,  C.     An  innkeeper  at  common  law  has  been  said 

172 


MOWEES   V.   FETHEKS.  §  51 

to  be  the  keeper  of  a  common  inn  for  the  lodging  and  enter- 
tainment of  travelers  and  passengers,  their  horses  and  attend- 
ants, for  a  reasonable  compensation.  5  Bacon's  Abr.,  Inns,  etc., 
228;  Story  on  Bailments,  §  475.  The  person  or  persons  un- 
dertaking this  public  employment  were  bound  to  take  in  and 
receive  all  travelers  and  wayfaring  persons,  and  to  entertain 
them  for  a  reasonable  compensation,  if  by  any  possibility  they 
could  be  accommodated,  and  the  innkeeper  was  bound  to  guard 
the  goods  of  his  guests  with  proper  diligence.  5  Term  R.  274; 
2  Barn.  &  Ad.  285;  1  Carr.  &  K.  404;  7  Carr.  &  P.  213;  4  Exch. 
367.  The  common-law  rule  has  been  generally  followed  by  the 
courts  in  this  country  save  so  far  as  it  has  been  modified  by 
statute.  The  duties,  rights  and  responbilities  of  an  innkeeper 
are  in  most  respects  kindred  to  those  of  a  common  carrier,  but 
in  order  to  enforce  the  strict  common-law  liability  of  an  inn- 
keeper, the  technical  relation  of  guest  and  innkeeper  must  be 
established,  and  the  question  is,  whether  it  existed  in  the  present 
case.    I  think  it  did  not,  for  reasons  now  to  be  suggested. 

It  seems  to  be  apparent  from  the  nature  of  the  duties  and 
obligations  of  the  keeper  of  a  common  or  public  inn,  that  he  is 
not,  in  his  capacity  of  innkeeper,  bound  to  receive  or  furnish 
accommodations  for  persons  desirous  of  exposing  their  com- 
modities for  sale,  or  bound  to  permit  his  establishment  to  be 
made  a  depot  for  the  propagation  of  horses. 

He  is  doubtless  bound  to  receive  and  entertain  a  strolling 
pedler,  and  securely  guard  his  pack  of  trinkets  if  brought 
infra  hospitium,  so  long  as  he  remains  a  mere  guest.  So,  also, 
would  he  be  bound  to  receive  and  entertain  a  wayfarer,  incum- 
bered with  a  stallion,  but  under  no  obligation  as  an  innkeeper 
to  allow  his  curtilage  to  be  turned  into  an  asylum  for  the  breed- 
ing of  horses.  It  is  very  manifest  in  this  case  that  the  sojourn 
of. the  plaintiff  Eggner,  with  the  horse,  at  the  defendant's  inn, 
was  not  that  of  an  ordinary  traveler.  The  purpose  and  object 
was  entirely  different,  and  the  defendant,  as  an  innkeeper,  was 
under  no  common-law  obligation  to  receive  and  entertain  the 
plaintiff  Eggner  and  his  horse  for  such  a  purpose,  and  where 
he  is  not  bound  to  receive  and  entertain  the  person  as  his  guest, 
the  strict  rule  of  common-law  liability  for  the  preservation  of 
his  property  does  not  obtain.  The  obligation  to  respond  for 
injury  to  property  depends  upon  his  duty  to  receive  and  enter- 
tain as  an  innkeeper,  and  they  must  stand  or  fall  together.  Grin- 
nell  V.  Cook,  3  Hill,  485,  38  Am.  D.  663 ;  Ingalsbee  v.  Wood,  36 
Barb.  455,  33  N.  Y.  577,  88  Am.  D.  409 ;  Hulett  v.  Swift,  id. 
571,  88  Am.  D.  405.  The  arrangement  by  which  the  plaintiff 
Eggner,  with  his  horse,  occupied  the  premises  of  the  defendant 

173 


§§  51,  52  OF  INNS  AND  INNKEEPEES. 

two  days  in  each  week,  was  made  beforehand,  and  was  to  con- 
tinue during  the  season,  for  serving  mares  that  should  be  brought 
to  the  inclosure.  The  stall  that  the  horse  was  to  occupy  was 
selected,  and  some  other  conveniences  incident  to  the  business 
to  be  carried  on  were  also  provided  for.  The  plaintiff  Eggner 
was  himself  to  groom  and  take  care  of  the  horse,  and  when 
occupying  the  stall  selected  for  his  accommodation  he  had  it 
under  a  lock  and  key  of  his  own.  The  price  of  oats  for  the 
horse  and  of  meals  for  Eggner  was  fixed  at  prices  less  than 
charged  ordinary  travelers.  Under  this  condition  of  facts  it 
appears  obvious  that  Eggner  did  not  come  for  entertainment 
at  the  defendant's  inn  as  an  ordinary  wayfarer,  but_under 
a  special  arrangement  previously  made.  In  such  case  the  utmost 
limits  of  the  defendant's  liability  was  that  of  an  ordinary  bailee 
for  hire. 

The  case  of  "Washburn  v.  Jones,  14  Barb.  193,  has  no  analogy 
to  this.  There  the  defendant  was  made  liable  for  negligence 
in  fact  in  the  construction  of  the  stall,  by  reason  of  which  the 
horse  received  the  injury,  and  that  liability  would  follow  if  he 
was  to  be  regarded  merely  as  an  ordinary  bailee. 

In  the  case  at  bar,  I  think,  there  should  be  a  new  trial. 

LoTT,  Ch.  C,  and  Gray,  C,  concur. 

Earl  and  Dwight,  CC,  dissent. 

Judgment  reversed,  and  new  trial  ordered. 


^^52.     FAY  V.  PACIFIC  IMPROVEMENT  CO., 

93  Cal.  253;  26  Pac.  R.  1099;  28  Pac.  R.  943;  27  Am.  St.  R.  198. 

1892. 

Action  against  an  innkeeper  for  damages  to  jewelry  by  fire. 

The  Court.  Upon  further  consideration  of  this  cause,  after 
hearing  in  Bank,  we  are  satisfied  with  the  conclusion  reached 
in  Department,  and  with  the  opinion  there  rendered,  and  for 
the  reasons  stated  in  said  opinion  the  judgment  and  order  ap- 
pealed from  are  affirmed. 

The  following  is  the  opinion  of  Department  Two,  above  re- 
ferred to,  rendered  on  the  23d  of  June,  1891 : — 

De  Haven,  J.  The  plaintiff  recovered  judgment  against 
the  defendant  for  damages  occasioned  by  the  loss  of  her  jew- 
elry, wearing  apparel,  and  other  articles  of  personal  property 
needed  for  her  personal  use,  consumed  by  fire  at  the  burning 
of  the  Hotel  Del  Monte,  April  1,  1887,  of  which  the  defendant 
was  at  that  time  the  proprietor. 

174 


FAY  V.  PACIFIC  IMPKOVEMENT  CO.  §  52 

The  court  below  found  that  the  Hotel  Del  Monte  was,  at  the 
date  named,  a  public  inn,  and  that  plaintiff  was  a  guest  therein. 
On  this  appeal  the  defendant  claims  that  the  evidence  does 
not  sustain  these  findings;  and  also  that  the  burning  of  the 
hotel  was  an  irresistible  superhuman  cause,  for  which  it  is  not 
liable,  and  that  it  is  not,  in  any  event,  liable  for  plaintiff's  dia- 
monds and  other  jewelry,  because  not  deposited  in  defendant's 
safe. 

1.  An  inn  is  a  house  which  is  held  out  to  the  public  as  a 
place  where  all  transient  persons  who  come  will  be  received 
and  entertained  as  guests  for  compensation, — a  hotel.  In  Win- 
termute  v.  Clark,  5  Sand.  247,  an  inn  is  defined  as  a  public 
house  of  entertainment  for  all  who  choose  to  visit  it,  and  this 
definition  was  quoted  with  approval  by  this  court  in  Pinker- 
ton  V.  Woodward,  33  Cal.  596;  91  Am.  Dec.  657.  The  fact 
that  the  house  is  open  for  the  public,  that  those  who  patronize 
it  come  to  it  upon  the  invitation  which  is  extended  to  the  gen- 
eral public,  and  without  any  previous  agreement  for  accommo- 
dation or  agreement  as  to  the  duration  of  their  stay,  marks  the 
important  distinction  between  a  hotel  or  inn  and  a  boarding- 
house.  This  difference  is  thus  stated  in  Schouler  on  Bailments : 
"An  inn  is  a  house  where  a  keeper  holds  himself  out  as  ready 
to  receive  all  who  may  choose  to  resort  thither  and  pay  an  ade- 
quite  price  for  the  entertainment;  while  the  keeper  of  a  board- 
ing-house reserves  the  choice  of  comers  and  the  terms  of  ac- 
commodation, contracting  specially  with  each  customer,  and 
most  commonly  arranging  for  long  periods  and  a  definite  abode" : 
Schouler  on  Bailments,  253. 

We  think  the  evidence  in  this  case  is  full  and  complete  to 
the  point  that  the  Hotel  Del  Monte  was  a  public  inn.  It  not 
only  had  a  name  indicating  its  character  as  such,  but  it  was 
also  shown  that  it  was  open  to  all  persons  who  have  a  right  to 
demand  entertainment  at  a  public  house;  that  it  solicited  pub- 
lic patronage  by  advertising  and  in  the  distribution  of  its  busi- 
ness cards,  and  kept  a  public  register  in  which  its  guests  entered 
their  names  upon  arrival  and  before  they  were  assigned  rooms; 
that  the  hotel,  at  its  own  expense,  ran  a  coach  to  the  railroad 
station  for  the  purpose  of  conveying  its  patrons  to  and  from 
the  hotel ;  that  it  had  its  manager,  clerks,  waiters,  and  in  its  in- 
terior management  all  the  ordinary  arrangements  and  appear- 
ances of  a  hotel,  and  the  prices  charged  were  for  board  and 
lodging.  These  facts  were  certainly  sufficient  to  justify  the 
court  in  finding,  as  it  did,  that  the  appellant  was  an  innkeeper: 
Krohn  v.  Sweeny,  2  Daly,  200.  Nor  was  the  force  of  this  evi- 
dence in  any  wise  modified  by  the  fact  that  the  hotel  was  not 

175 


§  52  OF  INNS  AND  INNKEEPEKS. 

immediately  upon  a  highway,  or  that  the  grounds  upon  which 
it  stood  were  inclosed  and  the  gates  closed  at  night.  The  loca- 
tion of  the  hotel,  the  extent  of  the  grounds  surrounding  it,  and 
the  manner  in  which  these  grounds  were  improved,  and  reserved 
for  the  exclusive  use  and  enjo>Tnent  of  those  who  patronized  it, 
doubtless  made  the  hotel  more  attractive  to  those  who  chose  to 
make  a  transient  resort  of  it,  but  did  not  convert  it  into  a  mere 
boarding-house.  A  hotel  is  none  the  less  one  because  in  some 
respects  it  may  be  conducted  differently  or  have  more  attractions 
than  other  public  hotels,  so  long  as  it  is  held  out  to  the  public 
as  a  place  for  the  entertainment  of  all  transient  persons  who  may 
have  occasion  to  patronize  it. 

"Modes  of  entertainment  alter  with  the  fashion  of  the  age, 
and  to  preserve  a  clear  definition  is  not  easy.  It  is  not  way- 
farers alone,  or  travelers  from  a  distance,  that  at  the  present 
day  give  character  to  an  inn,  the  point  being  rather  that  people 
resort  to  the  house  habitually,  no  matter  whence  coming  or 
whither  going,  as  for  transient  lodging  and  entertainment": 
Schouler  on  Bailments,  249. 

2.  The  evidence  shows  that  the  plaintiff  was  a  guest,  and  not 
a  boarder.  The  fact  that  upon  her  arrival,  and  before  being 
assigned  to  her  room,  she  ascertained  what  she  would  have  to 
pay  for  the  room  and  board  is  not  sufficient  of  itself  to  show 
that  she  was  not  received  as  a  guest :  Pinkerton  v.  Woodward, 
33  Cal.  597 ;  91  Am.  Dec.  657 ;  Hancock  v.  Rand,  94  N.  Y.  1 ; 
46  Am.  Rep.  112 ;  Jalie  v.  Cardinal,  35  Wis.  118 ;  Hall  v.  Pike, 
100  IMass.  495 ;  Berkshire  Woolen  Co.  v.  Proctor,  7  Cush.  417. 

The  Del  Monte  being  a  public  hotel,  in  the  absence  of  evidence 
showing  that  plaintiff  went  there  as  a  boarder,  the  presumption 
would  be  that  she  went  there  as  a  guest :  Hall  v.  Pike,  100  Mass. 
495.  Not  only  does  the  evidence  fail  to  overthrow  this  pre- 
sumption, but  the  testimony  of  the  plaintiff  shows  that  she  was 
there  as  a  mere  temporary  sojourner,  without  any  agreement  as  to 
the  time  she  should  stay,  and  with  only  the  intention  on  her 
part  of  resting  a  week  or  two,  and  then  proceeding  to  the  East. 
She  obtained  no  reduction  of  price  in  consideration  of  an  agree- 
ment to  remain  a  definite  time,  or  as  a  boarder;  nor  was  there 
anything  said  from  which  it  could  be  inferred  that  there  was 
any  understanding  between  her  and  the  defendant  that  she  was 
to  be  received  as  a  boarder,  and  not  as  a  guest. 

3.  Under  section  1859  of  the  Civil  Code,  an  innkeeper  is  liable 
for  the  loss  of  personal  property  placed  by  his  guests  under 
his  care,  ' '  unless  occasioned  by  an  irresistible  superhuman  cause, 
by  a  public  enemy,  by  the  negligence  of  the  owner,  or  by  the 
act  of  some  one  whom  he  brought  into  the  inn." 

176 


FAY  V.  PACIFIC  IMPKOVEMENT  CO.  §  52 

In  this  case,  the  loss  was  occasioned  by  the  burning  of  the 
hotel,  and  the  origin  of  the  fire  is  not  shown,  further  than  that 
it  broke  out  in  one  of  the  rooms  in  which  there  was  nothing 
except  the  batteries  which  supplied  the  bells  with  electricity. 
Under  this  state  of  facts,  the  defendant  is  liable:  Hulett  v. 
Swift,  33  N.  Y.  571;  88  Am.  Dec.  405.  A  fire  thus  occurring 
cannot  be  considered  an  ' '  irresistible  superhuman  cause, ' '  within 
the  meaning  of  section  1859  of  the  Civil  Code.  The  words  "irre- 
sistible superhuman  cause"  are  equivalent  in  meaning  to  the 
phrase  "the  act  of  God,"  and  refer  to  those  natural  causes 
the  effects  of  which  cannot  be  prevented  by  the  exercise  of  pru- 
dence, diligence,  and  care,  and  the  use  of  those  appliances  which 
the  situation  of  the  party  renders  it  reasonable  that  he  should 
employ:  1  Am.  &  Eng.  Ency.  of  Law,  174.  A  loss  arising 
from  an  accidental  fire  is  not  caused  by  the  act  of  God,  unless 
the  fire  was  started  by  lightning  or  some  superhuman  agency: 
Miller  v.  Steam  Nav.  Co.,  10  N.  Y.-  431 ;  Chicago  etc.  R.  R.  Co. 
V.  Sawyer,  69  111.  285 ;  18  Am.  Rep.  613. 

4,  The  court  finds  that  the  property  lost  was  such  as  was 
needed  for  the  present  personal  use  of  the  plaintiff.  We  can- 
not say  that  the  evidence  does  not  support  this  finding.  It 
certainly  cannot  be  said  that  jewelry  worn  by  a  woman  daily 
must,  when  not  actually  upon  her  person,  be  deposited  with 
the  innkeeper,  in  order  to  make  him  responsible  for  its  loss  in 
the  inn.  If  worn  daily,  it  does  not  cease  to  be  needed  for 
present  personal  use  when  its  possessor  lays  it  aside  upon  re- 
tiring for  the  night.  Nor  is  it  necessary,  in  order  to  render  the 
innkeeper  liable,  that  the  property  should  have  been  delivered 
into  his  exclusive  personal  possession. 

"The  guest  may  retain  personal  custody  of  his  goods  within 
the  inn, — as  of  his  trunk  and  its  contents,  his  wearing  ap- 
parel, and  other  articles  in  his  room,  and  any  jewelry  or  valuables 
carried  or  worn  around  his  person, — without  discharging  the 
innkeeper  from  responsibility";  Jalie  v.  Cardinal,  35  Wis.  126. 

We  have  examined  the  other  points  made  by  appellant,  but 
do  not  think  they  call  for  special  discussion. 

The  rule  which  makes  an  innkeeper  liable  for  the  value  of  the 
property  of  his  guest,  in  case  of  its  loss  by  fire,  may  at  first 
thought  be  deemed  a  harsh  one ;  but  the  loss  must  fall  somewhere, 
and  section  1859  of  the  Civil  Code  provides  upon  whom  it  should 
properly  fall,  and  the  innkeeper's  liability  in  this  respect  is 
one  of  the  burdens  pertaining  to  the  business  in  which  he  is 
engaged,  and  in  view  of  which  it  must  be  supposed  that  he  regu- 
lates his  charges. 

Judgment  and  order  affirmed. 
12  177 


§  53  OF  INNS  AND  INNKEEPEES. 

53.     PULLMAN  PALACE  CAR  CO.  V.  SMITH, 

73  111.  360;  24  Am.  B.  258.    1874. 

Smith  bought  of  defendant  car  company  a  sleeping  car  ticket 
from  Chicago  to  St.  Louis.  During  the  trip  $1,180  was  stolen 
from  his  pocket.  The  court  below  instructed  the  jury  that,  if 
they  found  that  plaintiff  while  sleeping  in  defendant's  car  on 
the  trip  was  robbed  as  charged,  they  should  find  a  verdict  for 
him  in  such  sum  as  they  considered  an  ordinary  and  reasonable 
sum  for  a  traveler  to  carry,  for  traveling  purposes  only,  upon 
such  a  journey,  with  interest  at  six  per  cent  for  fourteen  mouths. 
Verdict  of  $277  for  plaintiff. 

Sheldon,  J.  The  instruction  which  the  court  gave  to  the  jury 
made  the  company  responsible  as  insurer  for  the  safety  of  the 
money,  imposing  upon  it  the  severe  liability  of  an  innkeeper  or 
common  carrier.  And  it  is  the  position  which  appellee's  counsel 
take,  that  the  relation  between  the  parties  in  this  case  was  that  of 
innkeeper  and  guest,  and  that  the  liability  of  the  company  is  that 
of  an  innkeeper. 

In  order  to  ascertain  whether  the  extraordinary  responsibility 
claimed  here  exists,  it  becomes  important  to  inquire  into  the 
nature  of  inns  and  guests,  where  this  liability  was  imposed  by  the 
common  law,  and  see  whether  the  description  of  the  same  prop- 
erty applies  here. 

Kent,  in  defining  an  inn,  says :  ' '  It  must  a  be  house  kept  open 
publicly  for  the  lodging  and  entertainment  of  travelers  in  gen- 
eral, for  reasonable  consideration.  If  a  person  lets  lodgings 
only,  and  upon  a  previous  contract  with  every  person  who  comes, 
and  does  not  afford  entertainment  for  the  public  at  large,  indis- 
criminately, it  is  not  a  common  inn. ' '  2  Kent 's  Com.  595.  This 
is  substantially  the  same  definition  as  is  given  in  all  the  books 
upon  the  subject. 

But  the  keeper  of  a  mere  coffee-house,  or  private  boarding  or 
lodging-house,  is  not  an  innkeeper,  in  the  sense  of  the  law.  Id. 
596;  Dansey  v.  Richardson,  3  Ellis  &  B.  144;  E.  C.  L.  vol.  77; 
Holder  v.  Soulby,  98  E.  C.  L.  254;  Kisten  v.  Hildebrand,  9  B. 
Monr.  72,  48  Am.  D.  416.  It  must  be  a  common  inn,  that  is,  an 
inn  kept  for  travelers  generally,  and  not  merely  for  a  short 
season  of  the  year,  and  for  select  persons  who  are  lodgers.  Story 
on  Bailm.  §  475,  and  cases  cited  in  note.  The  duty  of  innkeep- 
ers extends  chiefly  to  the  entertaining  and  harboring  of  travelers, 
finding  them  victuals  and  lodgings,  and  securing  the  goods  and 
effects  of  their  guests;  and,  therefore,  if  one  who  keeps  a  com- 

178 


PULLMAN  PALACE  CAR  CO.  v.  SMITH.        §  53 

mon  inn  refuses  either  to  receive  a  traveler  as  a  guest  into  his 
house,  or  to  find  him  victuals  and  lodging,  upon  his  tendering 
him  a  reasonable  price  for  the  same,  he  is  not  only  liable  to 
render  damages  for  the  injury  in  an  action  on  the  case,  at  the 
suit  of  the  party  grieved,  but  also  may  be  indicted  and  fined  at 
the  suit  of  the  king.  3  Bac.  Abr.,  Inns  and  Innkeepers,  C.  The 
custody  of  the  goods  of  his  guest  is  part  and  parcel  of  the  inn- 
keeper's contract  to  feed,  lodge  and  accommodate  the  guest  for 
a  suitable  reward.    2  Kent's  Com.  592. 

From  the  authorities  already  cited,  it  is  manifest  that  this 
Pullman  palace  car  falls  quite  short  of  filling  the  character  of 
a  common  inn,  and  the  Pullman  Palace  Car  Company,  that  of  an 
innkeeper. 

It  does  not,  like  the  innkeeper,  undertake  to  accommodate  the 
traveling  public,  indiscriminately,  with  lodging  and  entertain- 
ment. It  only  undertakes  to  accommodate  a  certain  class,  those 
who  have  already  paid  their  fare  and  are  provided  with  a  first- 
clas's  ticket,  entitling  them  to  ride  to  a  particular  place. 

It  does  not  undertake  to  furnish  victuals  and  lodging,  but 
lodging  alone,  as  we  understand.  There  is  a  dining  ear  attached 
to  the  train,  as  shown,  but  not  owned  by  the  Pullman  company, 
nor  run  by  them.  It  belongs  to  another  company,  the  Chicago 
and  Alton  Dining  Car  Association.  Appellant,  as  we  under- 
stand, furnishes  no  accommodation  whatever,  save  the  use  of  the 
berth  and  bed,  and  a  place  and  conveniences  for  toilet  purposes. 
We  would  not  have  it  implied,  however,  that  even  were  these 
eating  accommodations  furnished  by  appellant,  it  would  vary 
our  decision ;  but  the  not  furnishing  entertainment  is  a  lack  of 
one  of  the  features  of  an  inn. 

The  innkeeper  is  obliged  to  receive  and  care  for  all  the  goods 
and  property  of  the  traveler  which  he  may  choose  to  take  with 
him  upon  the  journey.  Appellant  does  not  receive  pay  for,  nor 
undertake  to  care  for,  any  property  or  goods  whatever,  and 
notoriously  refuses  to  do  so.  The  custody  of  the  goods  of  the 
traveler  is  not,  as  in  the  case  of  the  innkeeper,  accessory  to 
the  principal  contract  to  feed,  lodge  and  accommodate  the  guest 
for  a  suitable  reward,  because  no  such  contract  is  made. 

The  same  necessity  does  not  exist  here,  as  in  the  case  of  a 
common  inn.  At  the  time  when  this  custom  of  an  innkeeper's 
liability  had  origin,  wherever  the  end  of  the  day's  journey  of  the 
wayfaring  man  brought  him,  there  he  was  obliged  to  stop  for 
the  night,  and  intrust  his  goods  and  baggage  into  the  custody  of 
the  innkeeper.  But  here,  the  traveler  was  not  compelled  to  ac- 
cept the  additional  comfort  of  a  sleeping  car;  he  might  have 
remained  in  the  ordinary  ear;  and  there  were  easy  methods 

179 


§  53  OF  INNS  AND  INNKEEPERS. 

within  his  reach  by  which  both  money  and  baggage  could  be 
safely  transported.  On  the  train  which  bore  him  M^ere  a  baggage 
and  express  car,  and  there  was  no  necessity  of  imposing  this 
dnty  and  liability  on  appellant. 

It  cannot  be  supposed  that  any  such  measure  of  duty  or  lia- 
bility attached  to  appellant,  as  is  declared  in  the  quotation  cited 
from  Bacon's  Abridgement  to  belong  to  an  innkeeper.  The 
accommodation  furnished  appellee  was  in  accordance  with  an 
express  contract  entered  into  when  he  bought  his  berth  ticket 
at  Chicago,  which  was  for  the  use  of  a  specified  couch  from 
Chicago  to  St.  Louis,  and  appellant  did  not  render  a  service 
made  mandatory  by  law,  as  in  the  case  of  an  innkeeper. 

But  if  it  should  be  deemed  that,  on  principle  merely,  this 
company  would  be  required  to  take  as  much  care  of  the  goods 
of  a  lodger,  as  an  innkeeper  of  those  of  a  guest,  the  same  may 
be  said  with  reference  to  the  keeper  of  a  boarding-house,  or  of  a 
lodging-house.  In  Dansey  v.  Richardson,  supra,  where  the  inn- 
keeper's liability  was  refused  to  be  extended  to  a  boarding-house 
keeper,  it  was  said  by  Coleridge,  J,:  "The  liability  of  the  inn- 
keeper, as,  indeed,  other  incidents  to  his  position,  do  not,  how- 
ever, stand  on  mere  reason,  but  on  custom,  growing  out  of  a  state 
of  society  no  longer  existing."  In  Holder  v.  Toulby,  supra, 
where  it  was  held  the  law  imposed  no  duty  upon  a  lodging-house 
keeper  to  take  due  care  of  the  goods  of  a  lodger,  Calye's  case, 
8  Co.  Rep.  32,  was  designated  as  fous  juris  upon  this  subject, 
where  it  was  expressly  resolved,  that,  though  an  innkeeper  is  re- 
sponsible for  the  safety  of  the  goods  of  a  guest,  a  lodging-house 
keeper  is  not.  And  in  Parker  v.  Flint,  12  Mod.  255,  "if,"  says 
Lord  Holt,  "one  come  to  an  inn  and  make  a  previous  contract 
for  lodging  for  a  set  time,  and  do  not  eat  or  drink  there,  he  is  no 
guest,  but  a  lodger,  and,  as  such,  is  not  under  the  innkeeper's 
protection ;  but  if  he  eat  or  drink  there,  it  is  otherwise,  or  if  he 
pay  for  his  diet  there,  though  he  do  not  take  it  there." 

The  peculiar  liability  of  the  innkeeper  is  one  of  great  rigor, 
and  should  not  be  extended  beyond  its  proper  limits.  We  are 
satisfied  that  there  is  no  precedent  or  principle  for  the  imposi- 
tion of  such  a  liability  upon  appellant. 

Appellant  is  not  liable  as  a  carrier.  It  made  no  contract  to 
carry.  Appellee  was  being  carried  by  the  railroad  company; 
and  if  appellant  were  a  carrier,  it  would  not  be  liable  for  the 
loss  in  this  case,  because  the  money  was  not  delivered  into  the 
possession  or  custody  of  appellant,  which  would  be  essential 
to  its  liability  as  carrier.  Tower  v.  The  Utica  and  Schenectady 
Railroad  Co.,  7  Hill,  47,  42  Am.  D.  36.  In  Redf.  Am.  Railw. 
Cases,  138,  it  is  said:    "But  it  has  never  been  claimed  that  the 

180 


BLUM  V.  SOUTHEEN  PULLMAN  PALACE  CAR  CO,  §§53,54 

passenger  carrier  is  responsible  for  the  acts  of  pickpockets  at 
their  stations,  or  upon  steamboats  and  railway  carriages." 

It  would  be  unreasonable  to  make  the  company  responsible 
for  the  loss  of  money  which  was  never  intrusted  to  its  custody 
at  all,  of  which  it  had  no  information,  and  which  the  owner  had 
concealed  upon  his  own  person.  The  exposure  to  the  hazard  of 
liability  for  losses  through  collusion,  for  pretended  claims  of 
loss  M'here  there  would  be  no  means  of  disproof,  would  make 
the  responsibility  claimed  a  fearful  one.  Appellee  assumed  the 
exclusive  custody  of  his  money,  adopted  his  own  measures  for 
its  safe-keeping  by  himself,  and  we  think  his  must  be  the  re- 
sponsibility for  its  loss. 

We  hold  the  instruction  to  be  erroneous,  and  the  judgment  of 
the  court  below  will  be  reversed,  and  the  cause  remanded. 

Judgment  reversed. 


)C54.  BLUM  V.  SOUTHERN  PULLMAN  PALACE  CAR  CO., 

1  Flippin  (U.  S.  Circuit  Court)  500.    1876. 

Charge  of  the  court  delivered  by  Brown,  J. — 
Gentleman  of  the  jury:     This  is  an  action  to  recover  of  the 
defendant  the  sum  of  $3,135,  lost  by  the  plaintiff  while  riding 
upon  a  sleeping  car  owned  and  controlled  by  the  defendant. 

The  plaintiff  left  Cairo,  in  the  State  of  Illinois,  about  five 
o'clock  in  the  evening  of  March  28,  1873,  taking  the  boat  down 
the  river  to  Columbus,  Kentucky.  On  the  boat,  he  purchased 
a  through  ticket  by  rail  from  Columbus  to  INIemphis,  and, 
shortly  after  midnight,  entered  the  sleeping  car  of  the  defendant 
at  Humboldt,  Tennessee,  in  which  he  was  assigned  a  lower  berth 
in  the  section  nearest  the  front  end  of  the  car.  He  disrobed 
himself  of  his  outer  garments,  placed  his  waistcoat,  in  an  inside 
pocket  of  which  was  a  wallet  containing  the  money  in  question, 
under  his  pillow,  lay  down  and  went  to  sleep.  The  train  ar- 
rived at  Memphis  between  three  and  four  in  the  morning,  but 
the  plaintiff  did  not  rise,  except  for  a  temporary  purpose  here- 
after explained,  until  about  seven  o'clock.  Meanwhile,  the 
other  passengers  had  all  left  the  car.  A  conductor  and  porter 
employed  by  the  defendant  had  charge  of  the  car,  to  which  the 
conductor  and  brakemen  of  the  train  also  had  access  for  the 
purpose  of  collecting  fares  and  regulating  its  movements.  Prior 
to  entering  his  berth,  plaintiff'  paid  the  conductor  of  the  car  $2, 
for  his  lodging,  and  at  the  same  time  handed  him  his  through 
ticket  to  IMemphis  to  be  delivered  to  the  conductor  of  the  train. 
In  rising  to  dress  himself,  the  plaintiff  found  his  waistcoat  and 

181 


§  54  OF  INNS  AND  INNKEEPEES. 

money  were  missing.  The  important  question  of  law  is  pre- 
sented as  to  the  measure  of  defendant's  liability. 

The  first  count  in  the  declaration  charges  defendant  with  the 
responsibility  of  a  common  carrier,  but  there  is  no  evidence  to 
support  it,  and  it  was  virtually  abandoned  upon  the  argument. 
The  contract  of  carriage  was  with  the  railroad  company.  It  re- 
ceived the  ticket  of  the  plaintiff,  offered  him  accommodation  in 
its  passenger  car,  and  was  ready  to  receive  his  luggage  in  another 
car  adapted  to  that  purpose.  It  drew  the  sleeping  car  of  the 
defendant,  collected  fares  of  its  passengers,  controlled  its  move- 
ments and  provided  for  its  safety.  Plaintiff's  contract  with  the 
railroad  company  was  entirely  distinct  from  that  with  the  de- 
fendant. 

It  is  strenuously  insisted  by  plaintiff's  counsel,  however,  the 
defendant  should  be  held  to  the  responsibility  of  an  inn-keeper. 
If  the  liability  of  an  inn-keeper  at  common  law  does  not  extend 
to  all  losses  of  his  guests  not  caused  by  an  act  of  God,  the  public 
enemies  or  the  negligence  of  the  guest  himself,  as  held  by  the 
older  authorities,  he  is  at  least  presumptively  responsible  for  all 
injuries  happening  to  the  goods  of  his  guests  entrusted  to  his 
care,  and  can  only  exonerate  himself  by  showing  that  he  did 
all  to  ensure  their  safety  which  it  was  in  his  power  to  do,  and 
that  no  default  is  attributable  to  his  servants  or  guests.  In  re- 
gard to  goods  stolen  from  his  custody,  without  evidence  to  show 
how,  or  by  whom,  it  was  done,  his  liability  is  the  same  as  that 
of  a  carrier.  It  is  admitted  that  if  the  defendant  is  held  as  an 
inn-keeper,  it  is  liable  for  the  loss  of  the  money  in  question. 
The  plaintiff's  counsel  have  produced  no  case  directly  in  point, 
nor  has  the  defendant  produced  any  authorities  determining 
definitely  the  scope  of  liability  in  such  cases,  although  the  Su- 
preme Court  of  Illinois  has  recently  decided  that  the  responsi- 
bility of  a  sleeping  car  company  is  not  that  of  an  inn-keeper. 
The  analogy  is  certainly  a  strong  one  between  the  hotel  and 
sleeping  car.  The  passenger  is  invited  to  undress  and  go  to  sleep 
in  a  bed  provided  for  that  purpose.  To  accept  this  invitation  his 
vigilance  must  be  relaxed,  and  his  clothing  and  purse  exposed 
to  thieves.  But  the  rigid  responsibility  of  inn-keepers  and  car- 
riers at  common  law  was  imposed  in  older  and  more  troublous 
times,  when  goods  were  carried  in  common  wagons,  passengers 
traveled  by  coach,  making  frequent  stops  at  houses  of  public 
entertainment,  whose  proprietors  frequently  colluded  with 
thieves  and  highwayman  to  plunder  their  guests.  While  the 
ancient  rule  is  still  enforced  as  against  those  classes  of  persons, 
the  tendency  of  modern  legislation  and  judicial  opinion  has  been 
to  limit  it  strictly  to  them.     The  keeper  of  a  private  boarding 

182 


BLUM  V.  SOUTHERN  PULLMAN  PALACE  CAR  CO.    §  54 

or  lodging  house,  or  of  a  restaurant  or  coffee  house  is  not  an  inn- 
keeper in  the  view  of  the  law,  notwithstanding  he  may  furnish 
lodgings  or  food,  or  both,  for  the  entertainment  of  his  guests. 
It  has  also  been  held  that  the  proprietor  of  a  hotel,  for  summer 
resort,  is  not  an  inn-keeper.  Notwithstanding  an  inn-keeper 
was  responsible  for  the  loss  of  the  horses  and  carriage  of  his 
guest,  the  keeper  of  a  livery  stable  is  liable  only  as  bailee  for 
negligence.  So,  also,  notwithstanding  seeming  analogies  in  their 
positions,  the  liability  of  common  carriers  has  not  been  extended 
to  warehousemen,  wharfingers,  telegraph  companies  or  ordinary 
bailees.  In  all  these  cases,  except  the  last,  the  opportunities  for 
plunder  are  no  less  favorable  than  those  of  carriers  and  inn- 
keepers. The  liability  of  the  inn-keeper,  indeed,  stands  less 
upon  reason  than  upon  custom  growing  out  of  a  state  of  society 
no  longer  existing. 

There  are  good  reasons  for  not  extending  such  liability  to 
the  proprietor  df  a  sleeping  car. 

1st — The  peculiar  construction  of  sleeping  cars  is  such  as 
to  render  it  almost  impossible  for  the  companj^  even  with  the 
most  careful  watch,  to  protect  the  occupants  of  berths  from  be- 
ing plundered  by  the  occupants  of  adjoining  sections.  All  the 
berths  open  upon  a  common  aisle,  and  are  secured  only  by  a 
curtain,  behind  which  a  hand  may  be  slipped  from  an  adjoin- 
ing or  lower  berth  with  scarcely  a  possibility  of  detection. 

2d — As  a  compensation  for  his  extraordinary  liability,  the 
inn-keeper  has  a  lien  upon  the  goods  of  his  guests  for  the  price 
of  their  entertainment.  I  know  of  no  instance  wdiere  the  pro- 
prietor of  a  sleeping  car  has  ever  asserted  such  lien^  and  it  is 
presumed  that  none  such  exists.  The  fact  that  he  is  paid  in  ad- 
vance does  not  weaken  the  argument,  as  inn-keepers  are  also 
entitled  to  pre-payment. 

3d — The  inn-keeper  is  obliged  to  receive  every  guest  who 
applies  for  entertainment.  The  sleeping  car  receives  only  first- 
class  passengers  traveling  upon  that  particular  road,  and  it  has 
not  yet  been  decided  that  it  is  bound  to  receive  those. 

4th — The  inn-keeper  is  bound  to  furnish  food  as  well  as  lodg- 
ing and  to  receive  and  care  for  the  goods  of  his  guests,  and,  un- 
less otherwise  provided  by  statute,  his  liability  is  unrestricted  in 
amount.  The  sleeping  car  furnishes  a  bed  only,  and  that,  too, 
usually  for  a  single  night.  It  furnishes  no  food,  and  receives  no 
luggage,  in  the  ordinary  sense  of  the  term.  The  conveniences  of 
the  toilet  are  simply  an  incident  to  the  lodging. 

5th — The  conveniences  of  a  public  inn  are  an  imperative 
necessity  to  the  traveler,  who  must  otherwise  depend  upon  pri- 
vate hospitality  for  his  accommodation,  notoriously  an  uncertain 

183 


§  54  OF  INNS  AND  INNKEEPEES. 

reliance.  The  traveler  by  rail,  however,  is  under  no  obligation 
to  take  a  sleeping  car.  The  railway  offers  him  an  ordinary 
coach,  and  cares  for  his  goods  and  effects  in  a  van  especially  pro- 
vided for  that  purpose. 

6th — The  inn-keeper  may  exclude  from  his  house  every  one 
but  his  own  servants  and  guests.  The  sleeping  car  is  .oJiliged 
to  admit  the  employees  of  the  train  to  collect  fares  and  control 
its  movements. 

7th — The  sleeping  car  can  not  even  protect  its  guests,  for 
the  conductor  of  the  train  has  a  right  to  put  them  off  for  non- 
payment of  fare,  or  violation  of  its  rules  and  regulations. 

I  hold,  therefore,  that  sleeping  car  companies  are  not  subject 
to  the  responsibility  of  inn-keepers  at  common  law,  and  that 
defendant  cannot  be  held  liable  upon  that  ground. 

The  scope  of  the  liability  of  companies  of  this  kind,  so  far 
as  I  know,  has  never  been  judicially  determined.  It  is,  un- 
doubtedly, the  law  that  where  a  passenger  does  not  deliver  his 
property  to  a  carrier,  but  retains  the  exclusive  possession  and 
control  of  it  himself,  the  carrier  is  not  liable  in  case  of  a  loss, 
as,  for  instance,  when  a  passenger's  pocket  is  picked,  or  an 
overcoat  or  satchel  is  taken  from  a  seat  occupied  by  him.  Upon 
this  theory,  it  is  insisted  by  defendant  that  it  can  not  be  held 
liable  for  negligence,  inasmuch  as  the  clothing  and  effects  of  its 
guests  are  never  formally  delivered  to  it.  I  can  not  for  a  mo- 
ment accede  to  this  proposition.  It  is  scarcely  necessary  to 
say  that  a  person  asleep  cannot  retain  manual  possession  or 
control  of  anything.  The  invitation  to  make  use  of  the  bed 
carries  mtli  it  an  invitation  to  sleep,  and  an  implied  agreement 
to  take  reasonable  care  of  the  guest 's  effects  while  he  is  in  such  a 
state  that  care,  upon  his  own  part,  is  impossible.  There  is  all 
the  delivery  which  the  circumstances  of  the  case  admit.  I  think 
it  should  keep  a  watch  during  the  night,  see  to  it  that  no  un- 
authorized persons  intrude  themselves  into  the  car,  and  take  rea- 
sonable care  to  prevent  thefts  by  the  occupants.  Defendant's 
own  testimony  tends  to  show  a  custom  on  its  part  to  keep  a 
man  on  watch  all  night,  and  to  keep  the  rear  door  locked.  Upon 
the  night  in  question,  however,  both  the  conductor  and  porter 
were  asleep  at  the  rear  end  of  the  car  for  two  or  three  hours 
prior  to  the  arrival  of  the  train  at  Memphis,  leaving  the  front 
door  unlocked  and  a  brakeman  sitting  in  the  front  end  of  the 
car.  If  you  find  the  loss  was  occasioned  by  the  negligence  of  the 
defendant  in  this  particular,  and  that  the  plaintiff'  himself  was 
guilty  of  no  negligence,  you  will  find  for  the  plaintiff.  It  is 
proved,  however,  that  the  plaintiff  arose  once  or  twice  during  the 
night,  either  before  or  after  the  arrival  of  the  train  at  Memphis, 

184 


BLUM  V.  SOUTHERN  PULLMAN  PALACE  CAE  CO.   §  54 

to  get  a  drink  of  water  at  a  washstand  immediately  adjoining 
his  section,  but  separated  from  it  by  a  board  partition,  leaving 
his  waistcoat  under  his  pillow.  There  is  some  conflict  of  evi- 
dence as  to  whether  he  could  see  his  berth  from  where  he  was 
standing.  If  you  find  the  plaintiff  guilty  of  negligence  in  this^ 
regard,  and  that  this  negligence  contributed  to  his. loss,  then 
he  is  not  entitled  to  recover,  notwithstanding  the  defendant  was 
also  guilty  of  negligence  in  the  particulars  above  specified. 

The  measure  of  damages  only  remains  to  be  considered.  The 
plaintiff  again  claims  the  benefit  of  the  law  applicable  to  inn- 
keepers, and  insists  upon  his  right  to  recover  for  the  entire 
amount  of  his  loss.  The  same  reasoning  would  entitle  him  to 
recover  a  fortune  if  he  had  seen  fit  to  carry  it  about  his  per- 
son and  lay  it  under  his  pillow,  and  this,  too,  in  the  absence  of 
notice  to  the  company.  The  defendant,  however,  like  a  com- 
mon carrier  of  passengers,  is  liable  only  for  such  property  as 
the  passenger  may  reasonably  be  supposed  to  carry  about  his 
person.  It  extends  to  his  clothing  and  personal  ornaments,  the 
small  articles  of  luggage  usually  carried  in  the  hand,  and  a 
reasonable  sum  of  money  for  his  traveling  expenses.  A  man  may 
lawfully  carry  any  sum  he  chooses  about  his  person,  but  with 
the  modern  facilities  for  obtaining  drafts  and  sending  money 
by"  express,  it  is,  to  say  the  least,  imprudent  to  carry  a  large 
amount.  As  defendant  received  but  two  dollars  for  the  use 
of  its  berth,  it  would  be  grossly  unjust  to  mulct  it  in  any  sum 
the  plaintiff  may  choose  to  swear  he  has  lost,  when  the  charges, 
simply,  of  transmitting  this  amount  by  express,  might  have 
been  double  or  quadruple  the  price  paid  for  the  accommodation. 
The  rule  claimed  by  plaintiff  would  place  carriers  and  owners 
of  sleeping  cars  completely  at  the  mercy  of  unscrupulous  and 
designing  men.  It  was,  at  least,  the  duty  of  the  plaintiff  to 
notify  the  conductor  of  the  amount  he  carried  al)out  him,  though 
even  then  it  is  very  doubtful  whether  he  could  have  charged  him 
with  the  responsibility. 

The  substance  of  the  law,  then,  is  this:  the  defendant  was 
not  only  bound  to  furnish  the  plaintiff  with  a  berth  for  his 
accommodation,  but  to  keep  watch  and  take  reasonable  care  that 
he  suffered  no  loss.  If  plaintiff's  loss  was  occasioned  by  the  want 
of  such  care,  and  his  own  negligence  did  not  contribute  to  it. 
he  is  entitled  to  recover  such  sum  as  you  may  deem  reasonably 
necessary  for  his  personal  expenses,  considering  the  length  of 
his  journey,  and  all  the  other  circumstances  of  the  case. 

The  jury  returned  a  verdict  for  $100. 


185 


§  55  OF  INNS  AND  INNKEEPEES. 

>C55.     CLARK  V.  BURNS, 

118  Mass.  275;  19  Am.  B.  456.    1875. 

Action  against  defendants,  owners  of  the  Cunard  line  of 
steamers,  as  common  carriers,  also  as  innkeepers,  with  counts 
in  tort  for  negligence.  According  to  the  agreed  state  of  facts 
plaintiff  was  a  first  class  passenger  on  defendant's  steamer 
from  Liverpool  to  New  York.  On  retiring  to  bed  he  hung  his 
Avaistcoat,  containing  in  a  pocket  the  watch,  on  a  hook  in  the 
state  room.  According  to  the  rules  of  the  boat  the  state  rooms 
were  not  locked,  so  as  to  enable  the  steward  to  enter  to  light  and 
put  out  the  lamps.  In  the  morning  the  watch  was  missing.  The 
captain  and  purser  were  at  once  notified  of  the  loss,  and  made 
a  careful  but  fruitless  search.  Qn  these  facts  judgment  was 
ordered  for  defendants  and  plaintiff  excepted. 

Gray,  C.  J.  The  liabilities  of  common  carriers  and  innkeepers, 
though  similar,  are  distinct.  No  one  is  subject  to  both  liabilities 
at  the  same  time,  and  with  regard  to  the  same  property.  The 
liability  of  an  innkeeper  extends  only  to  goods  put  in  his  charge 
as  keeper  of  a  public  house,  and  does  not  attach  to  a  carrier 
who  has  no  house  and  is  engaged  only  in  the  business  of  trans- 
portation. The  defendants,  as  owners  of  steamboats  carrying 
passengers  and  goods  for  hire,  were  not  innkeepers.  They 
would  be  subject  to  the  liability  of  common  carriers  for  the 
baggage  of  passengers  in  their  custody,  and  might  perhaps  be 
so  liable  for  a  watch  of  the  passenger  locked  up  in  his  trunk 
with  other  baggage.  But  a  watch,  worn  by  a  passenger  on  his 
person  by  day,  and  kept  by  him  within  reach  for  use  at  night, 
whether  retained  upon  his  person,  or  placed  under  his  pillow, 
or  in  a  pocket  of  his  clothing  hanging  near  him,  is  not  so  in- 
trusted to  their  custody  and  control  as  to  make  them  liable  for 
it  as  common  carriers.  Steamboat  Crystal  Palace  v.  Vanderpool, 
IGB.  Mon.  302;  Tower  v.  Utica  Railroad,  7  Hill,  47,  42  Am.  D. 
36 ;  Abbott  V.  Bradstreet,  55  Me.  530 ;  Pullman  Palace  Car  Co. 
V.  Smith,  24  Am.  R.  258,  7  Chicago  Legal  News,  237. 

Whether  the  defendants'  regulations  as  to  keeping  the  doors 
of  the  state-rooms  unlocked,  the  want  of  precautions  against 
theft,  and  the  other  facts  agreed,  were  sufficient  to  show  negli- 
gence on  the  part  of  the  defendants,  was  taking  the  most  favor- 
able view  for  the  plaintiff,  a  question  of  fact,  upon  which  the 
decision  of  the  court  below  was  conclusive.  Fox  v.  Adams  Ex- 
press Co.,  116  Mass.  292.      , 

Exceptions  overruled.      - — .. 

""^ "       ""  186 


CURTIS  V.  MUEPHY.  §  56 

56.     CURTIS  V.  MURPHY, 

63  Wis.  4;  22  N.  W.  R.  825;  53  Am.  B.  242.     1885. 

Action  against  an  innkeeper  to  recover  money  deposited  in  the 
inn  safe.    Judgment  for  defendant. 

Cole,  C.  J.  The  defendant  in  this  action  was  the  proprietor  of 
the  St.  James  hotel  in  Milwankee.  The  plaintiff  was  a  single 
man,  and  kept  a  saloon  not  many  blocks  distant  from  the  hotel. 
The  following  facts  are  clearly  shown  by  the  plaintiff's  own 
testimony.  About  twelve  o'clock  at  night  on  the  13th  of  March, 
1882,  the  plaintiff  came  to  the  hotel  with  a  disreputable  woman 
whom  he  had  met  on  the  street  and  whose  name  he  did  not  know, 
and  registered  himself  and  the  woman  as  "Thomas  Curtis  and 
wife, ' '  called  for  a  room  and  it  was  assigned  him  by  a  person  or 
clerk  who  was  in  charge  of  the  office.  The  plaintiff  testified 
that  before  going  to  his  ::"oom  he  said  to  this  clerk  that  he  saw  on 
the  top  of  the  register  that  all  moneys  and  jewels  should  be  given 
to  the  proprietor;  when  the  clerk  replied  that  the  proprietor 
was  in  bed  and  that  he  held  the  position  of  night  clerk.  There- 
upon the  plaintiff  handed  the  clerk  $102  for  safe-keeping  and 
took  a  receipt,  which  read,  "I.  0.  U.  $102,"  signed  by  the  clerk. 
That  night  the  clerk  absconded  with  the  money.  The  plaintiff 
sues  to  recover  it  of  the  proprietor  of  the  hotel. 

The  natural,  perhaps  necessary  inference  from  the  plaintiff's 
own  testimony  is,  that  he  went  to  the  defendant's  hotel  at  mid- 
night with  a  prostitute,  and  engaged  a  room  solely  for  the  pur- 
pose of  having  sexual  intercourse  with  the  woman.  True,  he  says 
that  he  went  to  the  hotel  as  a  guest  and  asked  the  clerk  if  he 
"could  stay  there  for  bed  and  breakfast."  But  he  lived  near 
by,  gave  no  reason  why  he  did  not  go  to  his  usual  lodging  place, 
therefore  we  feel  entirely  justified  in  assuming  that  he  went 
to  the  hotel  for  the  unlawful  purpose  above  indicated.  This 
being  the  case  the  question  arises  whether  he  was  a  guest  in  a 
legal  sense,  and  entitled  to  protection  as  such.  The  learned 
counsel  for  the  defendant  insists  that  he  cannot  and  should  not 
be  deemed  a  guest  rnder  the  circumstances,  and  entitled  to  the 
rights  and  privileges  of  one.  If  the  relation  of  innkeeper  and 
guest  did  exist  between  the  parties,  it  is  difficult  to  perceive 
upon  what  ground  the  defendant  can  escape  the  responsibility 
for  the  loss  of  the  money  handed  to  the  clerk  or  person  in  charge 
of  the  office ;  for  the  common  law,  as  is  well  known,  on  grounds 
of  public  policy,  for  the  protection  of  travellers  imposes  an  ex- 
traordinary liability  on  an  innkeeper  for  the  goods  of  his  guest, 
though  they  may  have  been  lost  without  his  fault. 

187 


§  56  OF  INNS  AND  INNKEEPEKS. 

It  is  not  easy,  says  Mr,  Schouler,  to  lay  do\YD.  on  the  whole 
who  should  be  deemed  a  guest  in  the  common-law  sense ;  the  facts 
in  each  case  must  guide  the  decision.  Bailments,  256.  A  guest 
is  a  "traveller  or  wayfarer,  who  puts  up  at  an  inn."  Calye's 
case,  8  Coke,  32.  "A  lodger  or  stranger  in  an  inn."  Jacob's 
Law  Diet.  A  traveller  who  comes  to  an  inn  and  is  accepted  be- 
comes instantly  a  guest.  Story  Bailments,  §  477.  "It  is  well 
settled  that  if  a  person  goes  to  an  inn  as  a  wayfarer  and  traveller, 
and  the  innkeeper  receives  him  into  his  inn  as  such,  he  becomes 
the  innkeeper's  guest,  and  the  relation  of  landlord  and  guest, 
with  all  its  rights  and  liabilities,  is  instantly  established  between 
them."  Jalie  v.  Cardinal,  35  Wis.  118.  "The  cases  show  that 
to  entitle  one  to  the  privileges  and  protection  of  a  guest  he  must 
have  the  character  of  a  traveller;  one  who  is  a  mere  temporary 
lodger,  in  distinction  from  one  who  engages  for  a  fixed  period 
at  a  certain  agreed  rate.  The  main  distinction  is  the  fact  that 
one  is  a  wayfarer,  or  transicns,  and  it  matters  not  how  long 
he  remains,  provided  he  assumes  this  character. ' '  Clute  v.  Wig- 
gins, 14  Johns  175,  7  Am.  Dec.  448. 

In  these  definitions  the  prominent  idea  is  that  a  guest  must  be 
a  traveller,  a  wayfarer,  or  a  transient  comer  to  an  inn  for  lodging 
and  entertainment.  •  It  is  not  now  deemed  essential  that  a  person 
should  have  come  from  a  distance  to  constitute  a  guest.  "Dis- 
tance is  not  material.  A  townsman  or  neighbor  may  be  a  travel- 
ler and  therefore  a  guest  at  an  inn  as  well  as  he  who  comes 
from  a  distance  or  from  a  foreign  country. ' '  Walling  v.  Potter, 
35  Conn.  183.  Justice  Wilde  says,  in  Mason  v.  Thompson,  9 
Pick.  283,  20  Am.  Dee.  471,  that  "it  is  clearly  settled  that  to 
constitute  a  guest  in  legal  contemplation,  it  is  not  essential  that 
he  should  be  a  lodger  or  haVe  any  refreshment  at  the  inn.  If  he 
leaves  his  horse  there  the  innkeeper  is  chargeable  on  account  of 
the  benefit  he  is  to  receive  for  the  keeping  of  the  horse. ' '  Judge 
Bronson,  in  commenting  on  this  case  in  Grinnell  v.  Cook,  3  Hill, 
485,  490,  38  Am.  Dec.  663,  says  where  the  owner  of  a  horse 
sent  the  animal  to  an  inn  to  be  kept,  but  never  went  there  him- 
self, and  never  intended  to  go  there  as  a  guest,  it  seemed  but 
little  short  of  downright  absurdity  to  say  that  in  legal  con- 
templation he  was  a  guest.  On  principle  it  would  seem  that  a 
person  should  himself  be  either  actually  or  constructively  at  the 
inn  or  hotel  for  entertainment  in  order  to  establish  the  relation 
of  landlord  and  guest.  In  Atkinson  v.  Sellers,  5  C.  B.  (N.  S.) 
442,  CocKBURN,  C.  J.,  remarks:  "Of  course  a  man  could  not 
be  said  to  be  a  traveller  who  goes  to  a  place  merely  for  the  pur- 
pose of  taking  refreshment.  But  if  he  goes  to  an  inn  for  refresh- 
ment in  the  course  of  a  journey,  whether  of  business  or  of  pleas- 

188 


CUETIS  V.  MUKPHY.  §  56 

ure,  he  is  entitled  to  demand  refreshment  and  the  innkeeper  is 
justified  in  supplying  it." 

If  a  traveller  have  no  personal  entertainment  or  refreshment  at 
an  inn,  but  simply  care  and  food  for  his  horse,  he  may  be  a  guest, 
for  he  makes  the  inn  his  temporary  abode — his  home  for  the  time 
being.  Ingalsbee  v.  Wood,  36  Barb.  452;  Coykendall  v.  Eaton, 
55  Barb.  188.  And  while  the  definition  of  guest  has  been  some- 
what extended  from  its  original  meaning,  it  does  not  include 
every  one  who  goes  to  an  inn  for  convenience  to  accomplish  some 
purpose.  If  a  man  or  woman  go  together  or  meet  by  concert  at 
an  inn  or  hotel  in  the  town  or  city  where  they  reside,  and  take  a 
room  for  no  other  purpose  than  to  have  illicit  intercourse,  can 
it  be  that  the  law  protects  them  as  guests  ?  Is  the  extraordinary 
rule  of  lial)ility  which  was  originally  adopted  from  considera- 
tions of  public  policy  to  protect  travellers  and  wayfarers,  not 
merely  from  the  negligence,  but  the  dishonesty  of  innkeepers  and 
their  servants,  to  be  extended  to  such  persons?  If  so,  then  for 
a  like  reason  it  should  protect  a  thief  who  takes  a  room  at  an 
inn  and  improves  the  opportunity  thus  given  to  enter  the  rooms 
and  steal  the  goods  of  guests  and  boarders.  We  do  not  think 
that  the  relation  of  innkeeper  and  guest  can  or  does  arise  in  the 
eases  supposed.  One  whose  status  is  a  guest  is  a  traveller  or 
transient  comer  who  puts  up  at  an  inn  for  a  lawful  purpose,  to 
receive  its  customary  lodging  and  entertainment.  It  is  not  one 
who  takes  a  room  solely  to  commit  an  offense  against  the  laws  of 
the  state.  So  upon  the  facts  detailed  by  the  plaintiff  himself, 
we  have  no  hesitation  in  saying  that  he  was  not  a  guest  at  the 
hotel  within  the  legal  sense  of  the  term.  The  relation  of  land- 
lord and  guest  was  never  established  between  them. 

We  feel  the  more  confidence  in  the  correctness  of  this  conclu- 
sion when  we  consider  the  duties  of  an  innkeeper.  An  innkeeper 
is  bound  to  take  in  all  travellers  and  wayfaring  persons  and  to 
entertain  them  if  he  can  accommodate  them  for  a  reasonable 
compensation,  and  he  must  guard  their  goods  with  proper  dili- 
gence. Bac.  Abr.,  tit.  "Inns  and  Innkeepers  (C.)  ;"  Story  Bailm., 
§  476.  Now  if  the  defendant  had  been  aware  of  the  purpose  of 
the  plaintiff  in  applying  for  a  room,  could  he  not  have  refused 
to  receive  him  into  his  house?  Nay,  more;  if  the  plaintiff  had 
been  received  by  the  clerk  and  a  room  had  been  assigned  him, 
could  not  the  defendant  on  learning  the  purpose  for  which  the 
room  had  been  taken,  have  incontinently  turned  the  plaintiff 
and  the  woman  with  him  into  the  street,  or  have  called  the  police 
and  had  them  arrested?  It  seems  to  us  there  can  be  no  doubt 
of  the  right  of  the  defendant  thus  to  have  treated  the  plaintiff. 
But  if  the  plaintiff  was  a  guest  and  entitled  to  the  rights  and 

189 


§§  56,  57  OF  INNS  AND  INNKEEPERS. 

privileges  of  a  person  having  that  status  at  the  hotel,  he  could 
not  have  been  turned  into  the  street,  though  his  profligate  con- 
duct was  outraging  all  decency  and  ruining  the  reputation  of  the 
hotel. 

The  questions  which  have  frequently  come  before  the  courts  for 
consideration  were  whether  a  person,  upon  the  facts  of  the  case, 
was  a  traveller  or  a  temporary  sojourner  so  as  to  be  deemed  a 
guest,  or  whether  he  was  to  be  regarded  as  a  boarder  or  one  at 
the  hotel  as  a  special  customer.  These  questions  are  elaborately 
examined  in  some  of  the  cases  above  cited;  also  in  McDaniels  v. 
Eobinson,  26  Vt.  316,  62  Am.  D.  574;  Berkshire  Woolen  Co.  v. 
Proctor,  7  Cush.  417 ;  Norcross  v.  Norcross,  53  Me.  163 ;  Pinker- 
ton  V.  Woodward,  33  Cal.  547,  91  Am.  D.  657 ;  Hancock  v.  Rand, 
94  N.  Y.  1,  46  Am.  Rep.  112;  Smith  v.  Keyes,  2  T.  &  C.  650; 
Fitch  V.  Casler,  17  Hun,  126;  McDonald  v.  Edgerton,  5  Barb. 
560;  Shoecraft  v.  Bailey,  25  Iowa,  554;  Manning  v.  Wells,  9 
Humph.  746,  51  Am.  Dec.  688. 

It  seems  to  have  been  taken  for  granted  in  the  court  below  that 
the  plaintiff  was  a  guest  at  the  hotel.  But  the  learned  County 
Court  held  that  §  1725,  R.  S.,  requires  the  guest  to  deliver  his 
money  to  the  innkeeper  himself,  or  to  a  clerk  having  authority 
from  the  innkeeper  to  receive  it.  As  it  did  not  appear  that  the 
clerk  in  this  case  had  such  authority,  the  defendant  was  relieved 
from  responsibility  for  the  money  lost  by  the  clerk.  We  should 
hesitate  to  affirm  the  correctness  of  this  vicAV  of  the  law.  On  the 
contrary,  we  think  a  traveller  when  he  goes  to  a  hotel  at  night 
and  finds  a  clerk  in  charge  of  the  office,  assigning  rooms,  etc.,  has 
the  right  to  assume  that  such  clerk  represents  the  proprietor  and 
has  authority  to  take  charge  of  money  which  may  be  handed  him 
by  a  guest  for  safe-keeping.  But  still  in  the  view  which  we  have 
taken  of  the  character  of  the  plaintiff,  and  that  he  was  not  a 
guest  at  the  hotel,  this  error  of  the  court  is  immaterial.  On  the 
whole  record  the  judgment  is  right  and  must  be  affirmed. 

Judgment  affirmed. 


57.    BENNET  V.  MELLOR, 

5  Term  Reports  273.     1793. 

The  defendant  was  an  innkeeper,  against  whom  the  plaintiff 
brought  his  action  for  the  value  of  goods  stolen  out  of  the  inn. 
At  the  trial  before  Buller,  J.,  at  the  last  Lancaster  assizes,  it  ap- 
peared that  the  plaintiff's  servant  had  taken  the  goods  in  ques- 
tion to  market  at  Manchester,  and  not  being  able  to  dispose  of 
them  went  with  them  to  the  defendant's  inn,  and  asked  the  de- 

190 


BENNETT  v.  MELLOR.  §  57 

fendant's  wife  if  he  could  leave  the  goods  there  till  the  week  fol- 
lowing (meaning  the  next  market  day)  ;  she  said  she  could  not  tell, 
for  they  were  very  full  of  parcels.  The  plaintiff's  servant  then 
sat  down  in  the  inn,  had  some  liquor,  and  put  the  goods  on  the 
floor  immediately  behind  him.  When  he  got  up  after  sitting  there 
a  little  while,  the  goods  were  missing.  A  verdict  was  found  for 
the  plaintiff ;  and  in  reporting  this  case  upon  a  motion  for  a  new 
trial,  Buller,  J.,  observed  that  he  was  of  opinion  that  if  the  de- 
fendant's wife  had  accepted  the  charge  of  the  goods  upon  the 
special  request  made  to  her,  he  should  have  considered  her  as  a 
special  bailee,  and  not  answerable  in  this  case,  having  been  guilty 
of  no  actual  negligence;  but  that  not  being  the  case,  he  con- 
sidered this  to  be  the  conunon  case  of  goods  brought  into  an 
inn  by  a  guest,  and  stolen  from  thence,  in  which  case  the  inn- 
keeper was  liable  to  make  good  the  loss. 

AsHHURST,  J.  It  does  not  appear  to  me  that  there  is  any 
ground  for  granting  a  new  trial.  If  it  had  appeared,  as  the  de- 
fendant's counsel  have  suggested,  that  these  goods  were  lost 
through  the  mere  negligence  of  the  plaintiff's  servants,  the  case 
might  have  deserved  greater  consideration;  but  nothing  of  that 
kind  appears  on  the  judge's  report.  According  to  the  report, 
the  case  was  simply  this:  the  plaintiff's  servant  came  to  the  inn, 
and  desired  to  have  the  liberty  of  leaving  the  goods,  which  he 
could  not  dispose  of  in  the  market,  until  the  next  week ;  that  pro- 
posal was  rejected;  then  he  sat  down  in  the  inn  as  a  guest,  with 
the  goods  behind  him,  and  during  that  time  the  goods  were  taken 
away.  But,  although  his  request  was  not  complied  with,  he  was 
entitled  to  protection  for  his  goods  during  the  time  he  continued 
in  the  inn  as  a  guest, 

Buller,  J.  Although  the  defendant  refused  to  take  charge  of 
the  goods  until  the  next  week,  the  circumstances  of  this  case  dis- 
tinguish it  from  that  cited,  where  the  innkeeper  said  his  house 
was  full  and  refused  to  take  in  the  guest ;  that,  if  true,  is  a  good 
excuse;  and  if  false,  the  innkeeper  is  liable  to  an  action  for  re- 
fusing to  take  in  the  guest.  But  here  the  request  was  merely  to 
take  care  of  the  plaintiff 's  goods  until  the  next  week ;  if  the  de- 
fendant had  taken  the  goods  upon  that  request,  he  could  only 
have  been  liable  as  a  bailee ;  but  that  proposal  was  not  accepted, 
and  then  this  case  stands  on  general  grounds.  It  is  clear  that 
the  goods  need  not  be  in  the  special  keeping  of  the  innkeeper 
in  order  to  make  him  liable;  if  they  be  in  the  inn,  that  is  suf- 
ficient to  charge  him.  In  Calve 's  case  it  is  said  "Although  the 
guest  doth  not  deliver  his  goods  to  the  inn-holder  to  keep,  nor 
acquaints  him  with  them,  yet  if  they  be  carried  away  or  stolen, 

191 


§§  57,  58  OF  INNS  AND  INNKEEPEKS. 

the  innkeeper  shall  be  charged;  and  therewith  agrees  42  Ed.  3. 
11  a."  There  it  is  said  that  on  the  words  of  the  writ  the  inn- 
keeper is  answerable  for  everything  in  his  inn,  but  not  for  a  horse, 
which  the  owner  orders  to  be  put  out  to  pasture.  One  of  the 
passages  cited  from  Com.  Dig.  cannot  be  supported,  if  taken  in 
a  general  sense ;  for  all  the  authorities  agree  that  it  is  not  neces- 
sary to  prove  negligence  in  the  innkeeper. 

Grose,  J.  Calye's  case,  which  is  a  good  comment  on  the  writ 
which  gives  this  action,  decides  this  present  case.  According  to 
that,  if  a  man  go  into  an  inn  and  is  accepted  there  as  a  guest, 
the  innkeeper  is  bound  to  take  care  of  the  goods  of  the  guest; 
and  so  says  the  case  in  Dyer.  If  indeed  the  innkeeper  had  re- 
fused to  take  in  the  plaintiff's  servant,  as  a  guest,  and  he  had 
notwithstanding  gone  into  the  inn,  the  plaintiff  could  not  have 
charged  the  defendant  with  the  loss  of  his  goods ;  in  such  a  case 
the  innkeeper  refuses  at  his  peril,  and  if  it  be  without  reason, 
an  action  lies  for  the  refusal;  but  in  this  case  there  was  no  re- 
fusal of  the  person ;  the  defendant  merely  refused  to  take  care 
of  the  goods  until  the  next  week.  And  when  the  plaintiff's  ser- 
vant was  sitting  in  the  inn,  with  the  consent  of  the  innkeeper 
(for  the  latter  did  not  object  to  receive  him) ,  he  was  in  the  same 
situation  as  any  other  guest,  and  entitled  to  the  same  protection 
for  his  goods. 

Rule  discharged. 


58.    BOWELL  V.  DE  WALD  ET  AL., 

2  Ind.  App.  303,  28  N.  E.  R.  430.     1891. 

Action  for  money  stolen  from  a  satchel  at  an  inn.  One  Cas- 
well, a  travelling  salesman  of  De  Wald  &  Co.,  had  been  collecting 
for  them,  and  became  a  guest  of  Bowell  at  the  Ross  House,  giv- 
ing the  satchel  containing  .$252  to  a  servant  of  the  inn.  He  put 
it  in  the  coat  room  adjoining  the  office.  When  Caswell  called 
for  the  satchel,  he  found  it  had  been  opened  and  the  money  ab- 
stracted. 

Robinson,  J.  (After  stating  the  facts  and  disposing  of  mat- 
ters of  pleading  and  practice).  There  is  some  conflict  in  the  eases 
as  to  the  extent  of  liabilities  of  innkeepers.  In  some  it  is  held 
that  they  are  responsible  to  the  same  extent  as  common  carriers. 

In  note  5  to  section  472,  Story  Bail.  (8th  ed.),  it  is  said  that 
some  American  cases  seem  to  hold  that  the  innkeeper  may  exon- 
erate himself  by  positive  proof  that  he  was  not  in  any  way  negli- 
gent, citing  a  number  of  cases,  among  which  is  that  of  Laird  v. 

192 


BOWELL  V.  DE  WALD,  ET  AL.  §  58 

Eichold,  10  Ind.  212,  71  Am.  D.  323.  That  case  decides  that 
although  an  innkeeper  is  prima  facie  liable  for  the  loss  of  the 
goods  of  his  guest,  yet  that  he  may  exonerate  himself  by  show- 
ing that  the  loss  happened  without  any  fault  on  his  part,  and 
that  he  exercised  the  strictest  care  and  diligence.  Baker  v.  Des- 
sauer,  49  Ind.  28. 

It  is  said  in  11  Am.  and  Eng.  Encyc.  of  Law,  p.  77,  par.  51, 
**  According  to  one  line  of  cases,  perhaps  constituting  a  majority 
of  the  decisions,  it  is,  as  before  explained,  not  necessary  for  the 
guest  to  prove  negligence  to  support  his  action  for  the  loss  of 
his  goods  against  the  innkeeper ;  nor  will  proof  by  the  innkeeper 
that  he  was  guilty  of  no  negligence  be  an  excuse  for  him,  unless 
he  brings  himself  within  those  cases  excepted.  But,  according 
to  a  different  line  of  cases,  the  prima  facie  liability  of  the  inn- 
keeper is  based  on  the  presumption  of  his  fault  or  negligence,  and 
that  he  may  exonerate  himself  by  positive  proof  that  he  was  not 
in  any  way  negligent. 

"The  general  rule  of  diligence,  on  the  part  of  innkeepers, 
is  that  of  'uncommon  care,'  as  Lord  Holt  has  it,  or  'the  ex- 
tremest  care, '  as  some  of  the  books  have  it.  But  it  has  been  laid 
down  that  public  utility  'requires  that  innkeepers  be  held  liable 
for  all  losses'  which  might  have  been  prevented  by  ordinary 
care.'  " 

The  following  cases,  decided  by  the  Supreme  Court,  have  a  di- 
rect bearing  upon  this  question:  Hill  v.  Owen,  5  Blackf.  323, 
35  Am.  D.  124;  Thickstun  v.  Howard,  8  Blackf.  535;  Laird  v. 
Eichold,  supra;  Baker  v.  Dessauer,  supra. 

It  seems  clear  that  these  cases,  without  conflict,  declare  the 
rule  of  law  to  be  that  an  innkeeper  is  prima  facie  liable  for  any 
loss  or  injury  to  the  goods  of  his  guest,  not  occasioned  by  the  act 
of  Providence,  the  public  enemies  or  the  fault  of  the  guest,  and 
the  prima  facie  liability  is  based  upon  the  presumption  that  the 
loss  or  injury  arose  from  the  negligence  or  fault  of  the  innkeeper, 
but  that  an  innkeeper  being  thus  prima  facie  liable  may  excul- 
pate himself  by  proof  that  the  loss  did  not  happen  through  any 
neglect  or  fault  on  his  part,  or  that  of  his  servants  for  whom  he  is 
responsible.  In  Laird  v.  Eichold,  supra,  after  stating  the  au- 
thorities, the  court  says:  "This,  we  think,  is  the  correct  doc- 
trine, founded  on  principle,  as  well  as  authority.  Innkeepers, 
on  grounds  of  public  policy,  are  held  to  a  strict  accountability  for 
the  goods  of  their  guests.  The  interests  of  the  public,  we  think, 
are  sufficiently  subserved,  by  holding  the  innkeeper  prima  facie 
liable  for  the  loss  or  injury  of  the  goods  of  his  guest ;  thus  throw- 
ing the  burthen  of  proof  upon  him,  to  show  that  the  injury  or 
loss  happened  without  any  default  on  his  part,  and  that  he  ex- 
i»  193 


§  58  OF  INNS  AND  INNKEEPERS. 

ercised  the  strictest  care  and  diligence.  And  it  is  more  in  accord- 
ance with  the  principles  of  natural  justice,  to  permit  him  to  ex- 
onerate himself  by  making  such  proof,  than  to  shut  the  door 
against  him  and  hold  him  responsible  for  an  accident  happening 
entirely  without  his  fault,  and  against  which  strict  care  and 
prudence  would  not  guard." 

In  Johnson  v.  Richardson,  17  111.  302,  63  Am.  D.  369,  the  court 
says :  ' '  The  general  doctrine  deducible  from  the  authorities,  an- 
cient and  modern,  is,  that  keepers  of  public  inns  are  bound  well 
and  safely  to  keep  the  property  of  the  guests  accompanying 
them  at  the  inn ;  and  in  case  such  property  is  lost  or  injured,  the 
innkeeper  can  only  absolve  himself  from  liability  by  showing 
that  the  loss  or  injury  occurred  without  any  fault  whatever  on 
his  part;  or,  by  the  fault  of  the  guest,  his  companions,  or  serv- 
ants ;  or,  by  superior  force ;  and  the  burden  of  proof  to  exonerate 
the  innkeeper  is  upon  him,  for  in  the  first  instance  the  law  will 
attribute  the  loss  or  injury  to  his  default." 

There  are  many  other  authorities  in  harmony  with  this  doe- 
trine,  but  it  is  unnecessary  to  cite  them. 

It  was  not,  therefore,  necessary  to  allege  in  the  complaint  care- 
lessness and  negligence  on  the  part  of  the  appellant. 


The  sixth  finding  of  the  court  reads  as  follows :  ' '  That  on  said 
day  said  baggage-room  was  not  secured  by  lock  or  otherwise,  and 
it  was  open,  and  that  said  baggage-room  had  two  exterior  win- 
dows facing  the  rear  yard.  There  was  a  rear  door  to  the  of- 
fice of  the  hotel  which  was  about  six  feet  from  the  door  of  said 
baggage-room ;  that,  on  the  afternoon  of  the  day  said  money  was 
taken,  said  clerk,  who  was  a  boy  sixteen  years  of  age,  was  for 
a  period  of  several  hours  the  only  person  in  charge  of  said  office 
and  baggage-room,  and  he  was  absent  from  said  office  and  bag- 
gage-room several  times  during  the  course  of  the  afternoon  in 
question  on  the  front  porch  of  the  hotel,  at  one  time  for  at  least 
twenty  minutes,  when  he  was  the  only  person  in  charge  of  said 
office  and  baggage-room,  and  the  said  baggage-room  could  have 
been  entered  from  the  door  of  the  rear  of  said  office,  when  said 
clerk  was  on  the  front  porch,  without  his  being  able  to  see  the 
person  so  entering  said  baggage-room.  Said  defendant  did  not 
issue  any  check  to  said  Caswell  for  his  valise.  The  guests  of  said 
hotel  were  permitted  at  all  times  to  enter  said  baggage-room,  and 
on  said  day  there  were  twenty  guests  at  said  hotel,  and  the  trav- 
eling bags  or  valises  of  those  who  had  such  baggage  were  kept 
in  said  baggage-room.  Defendant  had  no  safe  in  his  hotel  office 
for  keeping  money  or  valuables  of  his  guests,  and  the  said  Cas- 

194 


SIBLEY  V.    ALDKICH.  §§  58,  59 

well  did  not  inform  said  defendant  of  the  contents  of  his  valise. ' ' 
Under  the  ease  of  Johnson  v.  Richardson,  supra,  and  Coskery 
V.  Nagle,  30  Cent.  Law.  Jour.  158,  the  failure  of  the  guest  to  in- 
form the  innkeeper  or  his  servant  that  his  valise  contained  val- 
unables  does  not  constitute  negligence. 

The  judgment  is  affirmed,  with  costs. 


59.     SIBLEY  V.  ALDRICH, 

33  N.  H.  553;  66  Am.  D.  745.     1856. 

Case,  for  injury  to  a  horse  left  by  plaintiff's  servant  in  the 
stable  of  defendant's  inn.  It  appeared  that  the  horse  was  kicked 
by  the  horse  of  another  traveler,  and  his  leg  broken,  but  defend- 
ant offered  evidence,  which  was  excluded,  that  there  was  no  neg- 
ligence on  the  part  of  himself  or  his  servants.  Verdict  for  plaint- 
iff, by  consent,  judgment  to  be  rendered  thereon  or  verdict  set 
aside  as  court  should  see  fit. 

By  Court,  Perley,  C.  J.  The  defendant  offered  to  prove  that 
the  damage  to  the  plaintiff's  horse  was  not  caused  by  any  actual 
negligence  of  himself  or  his  servants.  He  did  not  offer  to  prove 
that  it  happened  through  the  negligence  or  default  of  the  plaint- 
iff, direct  or  implied ;  nor  by  irresistible  force,  inevitable  accident, 
or  by  the  act  of  God  or  the  public  enemy.  The  question  would 
seem  to  be  whether,  as  a  general  rule,  and  in  all  cases,  an  inn- 
keeper can  discharge  himself  from  liability  for  the  loss  of  his 
guest's  goods  by  showing  that  it  did  not  happen  by  the  actual 
neglect  or  default  of  himself  or  his  servants. 

On  this  point  the  authorities  are  not  unanimous.  Story,  in  his 
work  on  bailments,  sec.  482,  says :  "By  the  common  law,  as  laid 
down  in  Calye's  Case  [8  Co.  32],  an  innkeeper  is  not  chargeable 
unless  there  is  some  default  in  him  or  in  his  servants,  in  the  well 
and  safe-keeping  and  custody  of  his  guest's  goods  and  chattels 
within  his  common  inn,  but  he  is  bound  to  keep  them  safe,  with- 
out any  stealing  or  purloining" — quoting  thus  far  the  language 
of  the  report  in  Calye's  Case,  supra,  and  then  he  adds:  "This 
doctrine  is,  however,  to  be  taken  with  the  qualification  that  the 
loss  will  be  deemed  prima  facie  evidence  of  negligence. ' '  And  in 
section  472,  he  says  that  this  doctrine  should  be  recfeived  with 
some  hesitation,  in  view  of  the  case  of  Richmond  v.  Smith,  8 
Barn.  &  Cress.  9,  where  a  different  view  of  the  law  seems  to 
have  been  entertained.    Story's  authority  on  a  question  of  this 

195 


§  59  OF  INNS  AND  INNKEEPEES. 

nature  is  undoubtedly  of  great  weight;  but  it  is  to  be  observed 
that  he  states  his  opinion  with  some  hesitation,  and  he  does  not 
appear  to  have  reached  a  conclusion  in  this  instance,  after  his 
usual  extensive  and  careful  examination  of  the  authorities. 

In  Dawson  v.  Chamney,  5  Ad.  &  EL,  N.  S.,  165,  it  was  held 
that  when  goods  have  been  deposited  in  a  public  inn,  and  there 
lost  or  injured,  the  presumption  is  that  the  loss  or  damage  was 
caused  by  the  negligence  of  the  innkeeper  or  his  servants;  but 
that  this  presumption  may  be  rebutted,  and  if  the  jury  find  in 
favor  of  the  inmkeeper  as  to  negligence,  he  is  entitled  to  succeed 
on  a  plea  of  not  guilty.  Lord  Denman  cited  Story  as  authority 
for  this  rule.  The  circumstances  of  Dawson  v.  Chamney,  supra, 
were  much  like  those  of  the  present  case.  The  plaintiff  gave  his 
horse  in  charge  to  the  defendant's  hostler,  who  placed  him  in  a 
stable  with  another  horse,  that  kicked  him  and  caused  the  injury 
complained  of.  Metcalf  v.  Hess,  14  111.  129,  is  to  the  same  point, 
that  an  innkeeper  may  discharge  himself  by  showing  that  the 
loss  happened  without  any  default  on  his  part.  The  foregoing 
authorities  go  to  sustain  the  position  of  the  defendant. 

In  Merritt  v.  Claghorn,  23  Vt.  177,  the  court  held  that  an 
action  can  not  be  maintained  against  an  innkeeper  to  recover 
for  property  lost  by  fire,  which  was  occasioned  by  inevitable 
casualty,  or  superior  force,  and  w^ithout  any  negligence  on  the 
part  of  the  "innkeeper  or  his  servants.  This  last  case  is  put  on 
peculiar  grounds,  and  can  not  be  regarded  as  an  authority  for 
the  general  position  that  an  innkeeper  may  discharge  himself 
by  showing  that  the  loss  did  not  happen  by  his  default.  The 
fire  took  in  another  building  and  spread  to  the  inn. 

So  in  Kisten  v.  Hildebrand,  9  B.  Mon.  72,  48  Am.  D.  416,  it 
was  held  that  an  innkeeper  is  prima  facie  liable,  but  not  for  a 
loss  by  external  force  or  robbery,  or  if  the  loss  occur  by  the 
neglect  of  the  guest  or  his  servants,  or  his  companions:  For- 
ward V.  Pittard,  1  T.  R.  27,  31. 

On  the  other  hand,  there  are  numerous  authorities,  direct  and 
strong,  to  the  point  that  the  innkeeper  can  not  discharge  himself 
by  showing  that  loss  did  not  happen  by  his  default,  but  that 
he  must  go  further,  and  show  that  it  was  caused  by  the  default, 
direct  or  implied,  of  the  owner. 

Thus  Chancellor  Kent,  2  Com,  574,  says:  "An  innkeeper,  like 
a  common  carrier,  is  an  insurer  of  the  goods  of  his  guest,  and 
can  only  limit  his  liability  by  express  agreement  or  notice.  Rig- 
orous as  this  law  may  seem,  and  hard  as  it  may  actually  be  in 
some  instances,  it  is,  as  Sir  William  Jones  observes,  founded  on 
the  principles  of  public  utility  to  which  all  private  considera- 
tions ought  to  yield."    Metcalf,  in  his  note  to  Bedle  v.  Morris, 

196 


SIBLEY  V.  ALDEICH.  §  59 

Yelv.  162,  places  the  liability  of  an  innkeeper  and  common  car- 
rier on  the  same  footing,  and  so  does  the  civil  law:  Domat,  B. 
1,  T.  U.,  sec.  2,  a,  1.  Burgess  v.  Clements,  4  Man.  &  Sel.  306,  was 
much  considered.  The  point  there  decided  was,  that  an  innkeep- 
er is  not  answerable  for  the  goods  of  his  guest  which  are  lost 
through  the  negligence  of  the  guest  out  of  a  private  room  in  the 
inn,  chosen  by  the  guest  for  the  purpose  of  exhibiting  the  goods 
for  sale,  the  use  of  which  room  was  granted  by  the  innkeeper, 
who,  at  the  same  time,  told  the  guest  that  there  was  a  key,  and 
that  he  might  lock  the  door,  which  he  neglected  to  do.  In  com- 
menting on  Calye's  Case,  8  Co.  82,  and  the  language  of  the  old 
writ.  Lord  Ellenborough  is  reported  to  have  said :  ' '  There  can 
be  no  doubt,  also,  that  there  may  be  circumstances,  as  if  the 
guest  by  his  own  neglect  induces  the  loss,  or  himself  introduces 
the  person  who  purloins  the  goods,  which  form  an  exception  to 
the  general  liability,  as  not  coming  within  the  words  pro  defectu 
Jwspitatoris,  and  under  such  circmnstances  the  plaintiff  shall  not 
complain  of  the  loss,"  And  Le  Blanc,  J.,  in  the  same  case,  says: 
"We  must  take  the  facts  from  the  report,  and  also  that  the 
judge  stated  to  the  jury  that  the  innkeeper  was  responsible  to 
his  guest  for  the  safe  custody  of  his  goods,  but  that  the  guest 
might  by  his  own  misconduct  discharge  the  innkeeper  from  that 
responsibility."  Here  the  general  responsibility  of  the  innkeep- 
er for  the  safety  of  his  guest's  goods  is  clearly  conceded.  The 
decision  is  put  on  the  ground  of  misconduct  in  the  guest,  which 
caused  the  loss,  without  any  intimation  that  mere  want  of  negli- 
gence in  the  innkeeper  would  discharge  him.  Farnworth  v.  Pack- 
wood,  1  Stark.  249,  is  to  the  same  point  with  Burgess  v.  Kent, 
4  Mau.  &  Sel.  306. 

In  Richmond  v.  Smith,  8  Barn.  &  Cress.  9,  Lord  Tenterden 
says :  "  It  is  clear  that  at  common  law,  when  a  traveler  brings 
goods  to  an  inn,  the  landlord  is  responsible  for  them.  In  this 
respect  I  think  the  situation  of  the  landlord  was  precisely  analo- 
gous to  that  of  the  common  carrier;"  and  Bailey,  J.,  in  the  same 
case,  says:  "It  appears  to  me  that  an  innkeeper's  liability  very 
closely  resembles  that  of  a  common  carrier.  He  is  prima  facie 
liable  for  any  loss  not  occasioned  by  the  act  of  God  or  the  king's 
enemies,  although  he  may  be  exonerated  when  the  guest  chooses 
to  have  the  goods  under  his  own  care." 

In  Kent  v.  Shuckard,  2  Barn.  &  Ad.  803,  Lord  Tenterden  is 
reported  to  have  used  the  following  language:  "Innkeepers, 
like  common  carriers,  are  liable  by  the  custom  of  the  realm.  The 
principle  on  which  the  liability  of  an  innkeeper  for  the  loss  of 
the  goods  of  his  guest  is  founded  is,  both  by  the  civil  and  common 
law,  to  compel  the  innkeeper  to  take  care  that  no  improper  per- 

197 


§  59  OF  INNS  AND  INNKEEPERS. 

son  be  admitted  into  his  house,  and  to  prevent  collusion  between 
him  and  other  persons.  In  the  Digest,  L.  4,  T.  9,  sec.  1,  after 
stating  the  law  that  an  innkeeper  is  liable  for  the  goods  of  his 
guest,  it  is  said,  Nisi  hoc  essct  statiitum  materia  daretur  cum 
furihus  adversus  eos,  quos  rccipimit,  coeundi." 

Armistead  v.  Wliite,  6  Eng.  L.  &  Eq.  349,  was  an  action 
against  an  innkeeper,  and  the  judge  charged  the  jury  that  if  the 
owner  of  the  goods  was  guilty  of  gross  negligence,  the  innkeeper 
was  discharged.  The  court  held  the  instructions  were  sufficiently 
favorable  to  the  plaintiff,  and  queried  whether  it  was  necessary 
that  the  negligence  of  the  plaintiff  should  be  gross,  to  discharge 
the  defendant.  It  is  not  easy  to  understand  why  the  cause 
should  have  been  left  to  the  jury  in  this  way,  if  the  doctrine  of 
the  prior  case  of  Dawson  v.  Chamney,  5  Ad.  &  EL,  N.  S.,  165, 
had  been  recognized  for  law,  and  it  is  worthy  of  remark  that 
no  allusion  is  made  to  Dawson  v.  Chamney,  supra,  in  the  report 
of  Armistead  v.  White,  supra. 

In  Mason  v.  Thompson,  9  Pick.  280,  20  Am.  D.  471,  it  was 
decided  that  an  innkeeper  is  liable  for  the  loss  of  his  guest's 
goods  committed  to  his  care,  unless  the  loss  is  caused  by  the  act 
of  God  or  the  common  enemy,  or  by  the  fault  of  the  guest.  And 
Wilde,  J.,  in  delivering  the  opinion  of  the  court,  says  that  this 
rule  may  undoubtedly  in  some  eases  subject  the  innkeeper  to  loss 
without  any  negligence  or  default  on  his  part;  that  innkeepers 
as  well  as  common  carriers  are  regarded  as  insurers  of  property 
committed  to  their  care,  and  are  bound  to  make  restitution  for 
any  loss  or  injury  not  caused  by  the  act  of  God  or  the  common 
enemy,  or  the  neglect  or  fault  of  the  owner.  And  it  was  decided 
in  Washburn  v.  Jones,  14  Barb.  193,  that  an  innkeeper  is  liable 
for  all  losses  and  damages  happening,  even  without  his  default, 
excepting  such  as  are  caused  by  inevitable  accident  or  the  public 
enemy. 

The  question  was  very  fully  and  ably  discussed  in  the  recent 
case  of  Shaw  v.  Berry,  31  Me.  478  [52  Am.  Dec.  628],  and  the 
court  there  came  to  the  conclusion  that  to  discharge  an  innkeeper 
from  liability  for  the  loss  of  goods  in  his  charge  it  is  not  sufficient 
for  him  to  show  that  the  loss  did  not  happen  by  his  neglect  or 
default,  but  that  he  must  go  further  and  show  that  it  happened 
by  the  fault,  direct  or  indirect,  of  the  owner. 

The  leading  case  on  this  subject  is  Calye's  Case,  8  Co.  32,  a,  in 
which  the  point  resolved  was,  that  if  a  horse  is  put  out  to  pas- 
ture at  the  request  of  the  owner  by  an  innkeeper,  and  is  stolen, 
the  innkeeper  is  not  liable,  because  the  horse,  not  being  infra 
hospitium,  is  not  in  the  charge  and  custody  of  the  innkeeper  as 
such,  and  his  liability  as  an  innkeeper  does  not  attach.    The  re- 

198 


SIBLEY  V.  ALDRICH.  §  59 

port  cites  the  words  of  the  old  writ,  and  states  that  by  it  all 
the  cases  concerning  hostlers  may  be  decided.  The  part  of  the 
writ  which  bore  on  the  point  resolved  was  that  which  limits  the 
liability  of  the  innkeeper,  by  the  custom  of  the  realm,  to  goods 
of  the  guest  infra  hospitium;  and  in  commenting  on  the  language 
of  the  writ,  the  reporter  says  that  "the  innkeeper  shall  not  be 
charged  unless  there  be  a  default  in  him  or  his  servants  in  the 
well  and  safe-keeping  and  custody  of  the  guest's  goods  within 
his  common  inn ;  for  the  innkeeper  is  bound  in  law  to  keep  them 
safe  there,  without  any  stealing  or  purloining,  but  he  ought  to 
keep  his  goods  and  chattels  there  in  safety."  Considering  the 
connection  of  these  remarks  with  the  point  resolved  in  the  case, 
we  think  they  could  not  have  been  intended  to  lay  down  any  rule 
defining  the  extent  of  the  innkeeper's  liability  for  goods  in  his 
custody  as  such,  but  merely  to  state  that  his  liability  was  con- 
fined to  goods  deposited  in  the  inn. 

The  case  then  proceeds  to  state  an  exception  to  the  rule  that 
the  goods  within  the  common  inn  the  innkeeper  ought  to  keep  in 
safety,  to  wit,  that  if  the  goods  are  stolen  by  one  whom  the 
guest  brings  with  him,  the  innkeeper  is  not  liable,  for  then  the 
fault  is  the  guest's.  There  is  no  statment  in  the  report  that  ac- 
tual negligence  is  necessary  to  charge  the  innkeeper,  or  that  he 
can  discharge  himself  by  showing  that  the  goods  were  not  lost  by 
his  actual  negligence. 

The  language  of  the  old  writ  has  sometimes  been  made  the 
ground  of  an  inference  that  there  must  be  actual  negligence  to 
charge  an  innkeeper.  The  writ  recites,  "that  by  the  custom  of 
the  realm,  innkeepers  are  bound  to  keep  the  goods  of  their 
guests  within  their  common  inn,  without  substraction  or  loss,  night 
and  day,  ita  quod  pro  defectu  hujus  modi  Jiospitatorum  sed  servi- 
entium  suoruni" — no  damage  shall  in  any  manner  befall  such 
guest.  The  innkeeper  is  bound  to  keep  the  goods  of  his  guest 
so  that  no  damage  happen  by  his  default  or  that  of  his  servants. 
The  argument  is,  that  the  term  pro  defectu  implies  actual  fault 
and  negligence.  But  the  innkeeper  is  sued  for  neglecting  to  per- 
form his  legal  duty;  and  the  question  occurs.  What  is  the  duty 
which  the  law  and  the  custom  of  the  realm  imposes  on  him? 
If  the  law  holds  him  to  keep  the  goods  of  his  guest  at  all  events, 
except  in  case  where  the  loss  happens  by  the  act  of  God  or  the 
public  enemy,  or  by  the  fault  of  the  guest,  then  if  the  goods  are 
lost  by  mere  accident,  or  by  robbery,  without  any  want  of  actual 
care  on  his  part,  the  innkeeper  has  still  failed  to  perform  his 
legal  obligation,  and  the  goods  are  lost  by  his  neglect  and  failure 
to  perform  the  duty  which  the  law  imposes.     The  law,  in  such 

199 


§  59  OF  INNS  AND  INNKEEPEKS. 

case,  charges  the  innkeeper  with  the  duty  of  keeping  the  goods 
safely,  and  imputes  to  him  the  fault,  if  they  are  lost  or  damaged. 

In  this  view  of  their  meaning  these  words  of  the  writ  are  by 
no  means  idle  and  unmeaning,  because  the  innkeeper  is  not  in 
all  cases  liable  for  the  loss  of  goods  intrusted  to  his  care.  The 
loss  may  happen  by  the  act  of  God,  by  the  public  enemy,  or  by 
the  fault  of  the  owner,  and  in  that  case  the  damage  does  not 
happen  by  the  default  of  the  innkeeper.  If  the  declaration 
should  merely  allege  that  the  goods  were  lost  or  damaged,  with- 
out averring  that  the  loss  or  damage  happened  by  default  of  the 
innkeeper  or  his  servants,  it  is  apprehended  that  it  would  be 
substantially  defective,  and  bad  on  demurrer,  on  the  strictest 
rule  which  has  been  applied  to  the  innkeeper's  liability. 

This  argument,  from  the  form  of  pleading,  might  be  urged 
with  equal  force  to  show  that  a  common  carrier  is  only  liable 
for  loss  that  happens  by  his  actual  negligence.  In  the  settled 
form  of  declaring  in  a  case  against  a  carrier,  it  is  alleged  that 
the  defendant,  "neglecting  his  duty  in  that  behalf,  did  not 
safely  and  securely  carry,"  etc.,  "but  so  negligently  and  im- 
properly conducted  himself  that  by  and  through  the  negligence, 
carelessness,  and  default  of  the  defendant,"  the  goods  were  lost 
or  damaged:  Angell  on  Carriers,  429,  note;  Raphael  v.  Pick- 
ford,  5  Man.  &  G.  551 ;  2  Ch.  PI.  271,  272. 

And  in  the  ancient  form  of  declaring  against  a  common  car- 
rier, the  custom  of  the  realm  is  alleged  to  be  that  absque  suh- 
stractione,  amissione,  seu  spoliatione,  portare  tenentur,  ita  quod 
pro  defectu  dictorum  communium  postatorum,  seu  servienitum 
suorum  hujus  modi  bona  et  catalla,  eis  sic  ut  prefertur  delib- 
erata,  non  suit  perdita,  amissa,  seu  spoliata;"  and  in  assigning 
the  breach  it  was  alleged  that  "pro  defectu  honae  custodiae 
ipsius  defendentis  et  servientium  suorum  perdita  et  amissa  fue- 
runt." 

Three  different  rules  appear  to  be  laid  down  on  this  subject 
in  different  authorities. 

1.  That  the  innkeeper  is  prima  facie  liable  for  the  loss  of 
goods  in  his  charge;  but  may  discharge  himself  by  showing  that 
the  goods  were  not  lost  by  his  negligence  or  default,  and  this  is 
the  ground  taken  by  the  defendant  in  the  present  case.  This 
view  of  the  law  is  sustained  by  Dawson  v.  Chamney,  5  Ad.  &  El., 
N.  S.,  165,  and  by  Metcalf  v.  Hess,  14  111.  129. 

2,  That  the  innkeeper  is  discharged  by  showing  how  the  acci- 
dent happened  and  that  it  happened  by  inevitable  accident  or 
irresistible  force,  though  the  accident  might  not  amount  to  what 
the  law  denominates  the  act  of  God,  and  the  force  might  not  be 
the  power  of  a  public  enemy.     This  rule  is  countenanced  by 

200 


CUTLEE   V.  BONNEY.  §§59,60 

Merritt  v.  Claghorn,  23  Vt.  177,  and  Kisten  v.  Hildebrand,  9  B. 
Mon.  72,  48  Am.  D.  416. 

3.  That  the  innkeeper  is  liable,  unless  the  loss  was  caused  by 
the  act  of  God  or  the  public  enemy,  or  by  the  fault,  direct  or 
implied,  of  the  guest.  This  rule  is  maintained  in  Burgess  v. 
Clements,  4  Mau.  &  Sel.  306;  Richmond  v.  Smith,  8  Barn.  & 
Cress.  9 ;  Farnworth  v.  Packwood,  1  Stark.  249 ;  Kent  v.  Shuck- 
ard  2  Barn.  &  Ad.  803;  Armistead  v.  Yv^hite,  6  Eng.  L.  &  Eq. 
349 ;  Mason  v.  Thompson,  9  Pick.  280,  20  Am.  D.  471 ;  Shaw  v. 
Berry,  31  Me.  478,  52  Am.  Dec.  628. 

Of  text-writers.  Story,  though  with  hesitation,  goes  for  the 
first  rule.  Kent  states  the  third  rule  strongly,,  and  IMetcalf 
adopts  the  same,  and  the  civil  law  places  the  liability  of  the 
innkeeper  and  the  common  carrier  on  the  same  footing. 

It  is  somewhat  singular  that  on  a  practical  question,  which 
must  be  as  old  as  the  rudiments  of  the  law,  there  should  be 
found  at  this  day  such  diversity  of  opinion  and  decision.  It  is 
probably  OAving  to  the  obscure  way  in  which  the  subject  is 
treated  in  the  report  of  Calye's  Case,  8  Co.  32,  and  the  different 
interpretations  which  have  been  put  on  that  case.  On  the 
whole,  we  think  that  the  better  rule  is  the  strict  one  as  laid  down 
in  the  elaborate  and  very  satisfactory  case  of  Shaw  v.  Berry, 
supra.  The  weight  of  authority  is  heavily  that  way,  and  the  pol- 
icy and  analogies  of  the  law  lead  to  the  same  conclusion. 

Judgment  on  the  verdict. 


60.    CUTLER  Y.  BONNEY, 

30  Mich.  259;  18  Am.  R.  127.     1874. 

Action  against  an  innkeeper  for  loss  due  to  fire.  Judgment 
for  defendants. 

Campbell,  J.  Plaintiffs  brought  suit  to  recover  the  value  of 
certain  horses,  a  wagon,  and  some  goods  destroyed  by  fire  in  the 
barn  of  defendants,  who  were  innkeepers.  It  is  found  by  the 
court  that  there  was  no  fault  or  negligence  in  defendants  or  their 
servants,  the  fire  which  destroyed  the  barn  and  its  contents  hav- 
ing been  either  accidental  or  incidental,  and  taking  from  an  alley 
or  public  way  outside.  No  question  arises  upon  anything  except 
the  obligation  of  innkeepers  to  respond  to  their  guests  for  prop- 
erty thus  destroyed  without  negligence.  It  is  admitted  that  the 
property  was  in  the  custody  of  defendants  in  that  capacity. 

It  is  unfortunate  that  upon  this  subject  there  is  some  confu- 

201 


§  60  OF  INNS  AND  INNKEEPERS. 

sion,  arising  from  the  loose  dicta  in  which  many  courts  have 
indulged,  when  dealing  with  cases  involving  the  liability  of  inn- 
keepers. It  is  unsafe  to  give  any  force  to  such  remarks  beyond 
the  analogies  of  the  cases  in  which  they  are  found.  Upon  all 
questions  not  decided  by  recognized  and  accepted  precedents, 
we  can  only  rest  upon  the  ancient  maxims  of  the  common  law. 

In  order  to  hold  a  bailee  liable  for  that  which  is  in  no  respect 
to  be  imputed  either  to  his  own  negligence,  or  to  that  of  persons 
for  whom  he  is  responsible,  there  should  be  found  clear  author- 
ity. The  common  law  has  declared  this  liability  against  one 
class  of  bailees,  and  has  made  common  carriers  responsible  for 
all  losses  not  caused  by  public  enemies,  or  some  casualty  in  no 
way  arising  out  of  human  action.  It  is  claimed  by  plaintiffs 
that  in  this  respect  common  carriers  and  innkeepers  stand  on 
precisely  the  same  footing ;  and  it  is  not  claimed  that  defendants 
can  be  made  liable  in  the  present  case  on  any  narrower  ground. 

There  are  many  cases  in  which  it  has  been  said  by  judges  that 
the  liability  is  not  distinguishable.  Most  of  these  have  been  col- 
lected in  the  notes  of  Mr.  Holmes  to  the  last  edition  of  Kent's 
Commentaries. — 2  Kent,  596.  But,  except  in  the  decisions  to  be 
especially  referred  to  hereafter,  there  is  nothing  in  the  facts  of 
any  authority  which  we  have  discovered,  which  called  for  any 
such  remark,  or  which  would  justify  the  enforcement  of  a  lia- 
bility for  such  a  loss  as  the  present. 

With  one  or  two  exceptions  the  cases  referred  to  have  arisen 
from  thefts  or  unexplained  losses  of  property,  while  it  was  with- 
in the  legal  custody  or  protection  of  the  innkeeper.  The  rule  ac- 
tually applied  in  all  of  these  cases  has  been  that  all  such  losses 
were  presumably  due  to  the  neglect  of  the  innkeeper.  Generally, 
and  perhaps  universally,  he  has  been  held  to  an  absolute  responsi- 
bility for  all  thefts  from  within,  or  unexplained,  whether  commit- 
ted by  guests,  servants,  or  strangers.  But  he  has  quite  as  uni- 
formly been  discharged,  by  any  negligence  of  the  guest  conducing 
to  the  injury,  and  he  has  not  been  held  for  acts  done  by  the  ser- 
vants of  guests,  or  by  those  whom  they  have  admitted  into 
their  rooms.  And  in  many  cases  he  has  been  held  discharged 
where  the  guest  has  exercised  any  special  control  over  his  prop- 
erty. The  general  principle  seems  to  be  that  the  innkeeper  guar- 
antees the  good  conduct  of  all  persons  whom  he  admits  under  his 
roof,  provided  his  guests  are  themselves  guilty  of  no  negligence 
to  forfeit  the  guarantee. 

Beyond  this,  we  have  found  no  decided  ease  anywhere.  We 
have  found  no  decision  holding  innkeepers  liable  for  losses  by 
purely  accidental  casualties,  or  from  riots,  or  acts  of  force  from 
without,  such  as  have  been  from  the  beginning  excepted  by  the 

202 


CUTLEE   V.  BONNEY.  §  60 

text  writers.  These  writers,  or  at  least  such  of  them  as  are  of 
recognized  authority,  have  drawn  a  line  between  carriers  and 
innkeepers,  resting  on  the  distinction  between  absolute  and  quali- 
fied responsibility.  And  none  of  the  accepted  writers  have  found 
any  authority  for  disregarding  this  distinction.  The  two  classes 
of  bailees  have  been  kept  carefully  separate. 

Judge  Story  makes  this  very  clear  in  his  Treatise  on  Bail- 
ments, §  472,  where  he  refers  to  authorities  which  we  think  sus- 
tain him.  Dawson  v.  Chamney,  5  Q.  B.  164,  is  directly  in  point, 
and  the  language  of  the  older  decisions  there  referred  to  ex- 
cludes the  extreme  measure  of  liability.  Chancellor  Kent  is 
equally  explicit  that  the  liability  does  not  extend  to  robbery  or 
inevitable  casualty.  2  Kent's  Com.  593.  The  Eoman  law,  to 
which  both  of  them  refer,  included  fire  under  this  head.  The 
French  law  excludes  liability  for  wrongs  from  without.  Ferriere 
Die,  "Aubergistes;"  Story  on  Bailm.,  §  465. 

But  all  the  modern  authorities  profess  to  take  their  departure 
from  Calye's  Case,  8  Co.  32.  The  case  declares  that  the  original 
writ  quoted  in  it,  and  found  in  Fitzherbert's  N.  B.  94  B.,  con- 
tains the  whole  ground  of  the  common  law.  Analyzing  the  writ, 
the  fourth  heading  is  made  to  refer  to  the  ground  of  liability 
as  the  default  of  the  innkeeper,  "by  which  it  appears  that  the 
innholder  shall  not  be  charged,  unless  there  be  a  default  in  him 
or  his  servants,  in  the  well  and  safe-keeping  and  custody  of 
their  guests,  goods  and  chattels  within  his  common  inn."  The 
language  in  Fitzherbert  is  "so  that  by  the  default  of  them, 
the  innkeepers  or  their  servants,  no  damage  may  come  in  any 
manner  to  their  guests."  Among  the  defenses  given  by  Saun- 
ders is  that  "defendant  may  show  that  his  house  was  broken 
open,  and  a  forcible  robbery  of  them  committed  by  thieves." 
2  Saund.  PI.  &  E.  217.  And  the  liability  of  innkeepers  for  the 
acts  of  others  is  put  by  Blackstone  on  the  ground  that  they  were 
bound  to  prevent  misconduct  by  those  under  their  control.  1  Bl. 
430.  Accidental  fire  stands  on  quite  as  strong  grounds  of  ex- 
emption as  other  mishaps. 

The  common  law  has  in  some  things  been  modified  by  decisions, 
but  it  is  contrary  to  law  to  follow  dicta  made  in  cases  calling  for 
no  departure  from  the  old  law.  It  would  be  a  manifest  innova- 
tion to  create  a  liability  where  no  possible  default  exists,  and  to 
sustain  such  an  innovation,  there  ought  to  be  both  reason  and 
authority.  We  can  not  object  to  follow  settled  law  on  our  own 
views  of  what  policy  ought  to  make  it.  But  we  are  not  prepared 
to  assume  there  is  any  policy  which  will  compel  persons  who  are 
in  no  wise  in  fault  to  respond  in  damages,  where  the  law  is  not 
clear  against  them.     And  the  authorities  directly  in  point  ou 

203 


§  §  60,  61  OF  INNS  AND  INNKEEPEES. 

losses  by  fire  are  not  numerous,  and  do  not,  in  our  judgment, 
call  for  any  such  consequences. 

The  doctrine  imposing  such  a  liability  may  be  said  to  rest  en- 
tirely on  what  was  said  by  Justice  Porter  in  Hulett  v.  Swift,  33 
N.  Y.  571,  88  Am.  D.  405.  In  that  case  the  subject  is  discussed 
at  some  length,  and  with  much  ability.  But  no  foundation  is 
shown  there  for  the  doctrine  asserted,  beyond  remarks  which  are 
confessedly  opposed  to  the  text-books,  and  which  were  foreign 
to  what  was  actually  decided  in  the  cases  where  they  are  found. 
The  whole  opinion  of  the  learned  judge  is  open  to  the  same  criti- 
cism; as  he  himself  declares  the  point  discussed  did  not  really 
arise,  inasmuch  as  no  proof  was  introduced  changing  the  pre- 
sumption raised  by  law  against  the  defendant.  The  opinion  was 
not  unanimous,  and  the  dissent  of  Judge  Denio  would  detract 
much  from  its  force,  even  if  it  had  been  pertinent  to  the  facts. 

Opposed  to  this  is  the  case  of  Merritt  v.  Claghorn,  23  Vt.  177, 
in  which  Judge  Redpield,  delivering  the  opinion  of  the  court, 
reached  the  conclusion  that  where  there  was  no  negligence  there 
was  no  responsibility  for  loss  by  fire.  This  opinion  is  an  able 
one,  and  was  not  given  beyond  the  facts.  It  has  been  both  ap- 
proved and  criticised,  but  no  occasion  has  heretofore  arisen  to 
consider  its  correctness  upon  similar  facts.  Vance  v.  Throck- 
morton, 5  Bush  (Ky.),  42,  96  Am.  D.  327,  is  to  the  same  effect, 
but  there,  too,  the  decision  might  have  rested  on  other  grounds, 
and  its  authority  is  therefore  diminished. 

We  regard  the  decision  in  Vermont  as  reasonable,  and  as  with- 
in the  fair  meaning  of  the  common-law  rule.  We  think  the  Cir- 
cuit Court  was  right  in  taking  the  same  view. 

The  judgment  must  be  affirmed,  with  costs. 

The  other  justices  concurred. 

Judgment  affirmed. 


61.    MURCHISON  V.  SERGENT, 

69  Ga.  206;  47  Am.  R.  754.     1882. 

Action  for  money  and  valuables  lost  at  an  inn. 
Judgment  for  defendant. 

•  Jackson,  C.  J.  The  plaintiff  in  error  sued  the  defendant  to 
recover  some  five  hundred  dollars  of  money  and  the  value  of  a 
gold  watch  and  chain,  which  sum  of  money,  together  with  the 
watch  and  chain,  was  stolen  from  the  plaintiff  whilst  lodging  at 
the  hotel  of  the  defendant  and  asleep  at  night  in  the  room  he  oc- 
cupied as  a  guest.    The  jury  found  for  the  defendant,  and  on  the 

204 


MUECHISON  V.  SEEGENT.  §  61 

refusal  of  the  city  court  of  Savannah  to  grant  the  plaintiff  a 
new  trial  on  the  grounds  set  out  in  his  motion  therefor,  he  brings 
the  case  to  be  reviewed  here. 

The  facts  briefly  are  that  the  plaintiff  and  his  wife  were  on 
their  bridal  tour,  and  remained  a  few  days  at  the  Screven  House 
in  Savannah.  The  plaintiff  on  retiring  to  bed  laid  his  clothing 
watch  and  chain,  and  pocket  book  containing  the  money,  with  the 
clothing  on  a  lounge  in  the  room;  and  in  the  morning  while 
dressing  he  discovered  his  loss.  He  testified  that  he  locked  and 
bolted,  as  he  thought,  the  door  of  his  chamber  on  retiring,  but 
in  the  morning  ascertained  that  the  bolt  did  not  work  and  could 
not  penetrate  more  than  one-sixteenth  of  an  inch,  and  was  worn 
so  as  to  be  insecure.  A  guest  who  had  occupied  the  same  room 
a  short  time  before  also  testified  to  the  insecurity  of  the  bolt, 
going  into  detail  in  regard  to  repeated  efforts  to  bolt  the  door 
on  his  part  whilst  occupying  the  room,  and  after  many  efforts 
and  the  exercise  of  a  good  degree  of  strength  and  skill,  his  suc- 
cess at  last  in  making  the  bolt  enter  an  eighth  of  an  inch — 
positively  swearing  to  its  insecurity.  A  former  employee  of  the 
house  testified  also  to  the  insecurity  of  the  bolt  on  the  door 
of  this  room. 

On  the  other  side,  the  proprietor  of  the  hotel  and  the  defend- 
ant in  this  suit,  with  his  clerk,  and  two  or  three  detectives  em- 
ployed by  him,  swore  that  the  lock  and  bolt  were  perfectly 
good,  and  that  the  plaintiff  said  to  them  that  he  was  uncertain 
about  having  locked  the  door,  but  knew  he  had  not  bolted  it. 
The  proprietor  admitted  that  he  had  changed  the  notice  in 
some  of  the  rooms.  It  was  testified  by  the  plaintiff  and  wife 
that  there  was  no  notice  of  any  sort  on  their  door  or  in  their 
room  when  they  went  to  breakfast,  but  after  their  loss  was 
known,  on  their  return  after  breakfast  they  found  one  posted 
on  their  door. 

The  motion  for  a  new  trial  is  based  on  grounds  which  may 
be  reduced  to  three:  first,  that  the  register  of  the  hotel  where 
the  plaintiff  entered  his  name  was  admitted  illegally  in  evi- 
dence; secondly,  that  the  charge  of  the  court  on  the  subject  of 
notice  was  erroneous;  and  thirdly,  that  the  verdict  is  not  sup- 
ported by  the  evidence  and  is  against  the  law  of  the  ease. 

[After  holding  that  notice  in  the  register  was  *'not  posted" 
as  required  by  the  statute] 

3.  This  left  as  the  sole  questions  for  trial,  was  the  plaintiff 
negligent,  and  was  the  loss  the  consequence  of  that  negligence? 
The  presumption  of  law  is  that  the  defendant,  the  landlord, 
was  negligent,  and  his  negligence  caused  the  loss.  Code,  § 
2120.    That  section  declares  that  "in  case  of  loss   the  presump- 

205 


§  61  OF  INNS  AND  INNKEEPERS. 

tion  is  want  of  proper  diligence  in  the  landlord."  So  the  ease 
stands  precisely  as  though  the  plaintiff  had  proved  gross  neg- 
ligence on  the  defendant.  What  "negligence  or  default  by  the 
guest  himself,  of  which  the  loss  is  a  consequence,"  and  which 
the  same  section  2120  enacts  shall  be  "a  sufficient  defense,"  by 
the  landlord  to  show,  in  order  to  rebut  the  presumption  the  law 
fixes  on  him,  is  proved  in  this  record  ?  No  regulation  of  the  ho- 
tel was  made  known  to  him;  no  express  agreement  was  made 
with  him;  the  articles  stolen  were  in  the  room  assigned  him. 
Their  deposits  in  that  room,  by  section  2118  of  the  Code,  was 
a  delivery  to  this  innkeeper,  and  he  must  make  good  their  loss, 
unless  the  negligence  of  the  guest  caused  it.  and  that  the  land- 
lord must  prove. 

Was  the  plaintiff  negligent  in  putting  his  clothes  and  watch 
on  the  lounge?  or  in  leaving  his  money  in  the  pocketbook  with 
his  clothes?  or  in  not  bolting  the  door,  if  he  did  not,  in  the  ab- 
sence of  any  notice  of  a  regulation  that  he  must?  We  can  not 
see,  that  whilst  it  may  have  been  carelessness  to  some  extent, 
any  thing  of  this  sort,  in  the  absence  of  notice  of  some  rule 
or  regulation,  is  such  negligence  as  will  relieve  the  landlord 
of  that  gross  negligence  of  which  the  law  presumes  him  guilty. 
The  entire  room  is  safe  for  the  guest,  if  he  comply  with  the 
rules  of  the  inn.  The  deposit  of  any  thing  in  it  is  a  deposit 
with  the  landlord — a  delivery  to  him;  unless  therefore  notified 
that  he  must  not  leave  it  in  that  room,  it  is  not  negligence  to 
do  so. 

Even  if  notice  had  been  published  to  him  according  to  law  to 
deposit  valuables  in  another  place,  it  would  not  apply  to  travel- 
ing money  and  a  watch  of  reasonable  amount  and  value.  Petti- 
grew  V.  Barnum,  11  Md.  434,  69  Am.  D.  212 ;  Maltby  v.  Chap- 
man, 25  id.  310 ;  Berkshire  Co.  v.  Proctor,  7  Cush.  417 ;  Wilkins 
V.  Earle,  44  N.  Y.  172,  4  Am.  R.  655. 

In  the  absence  of  notice  of  a  rule  of  the  inn  to  lock  and  bolt 
the  door,  the  failure  to  do  so  is  not  legal  negligence  at  common 
law.  Morgan  v.  Ravey,  6  H.  &  N.  265 ;  Buddenburg  v.  Benner, 
1  Hilt.  84;  Classen  v.  Leopold,  2  Sweeny,  705;  Gile  v.  Libby, 
36  Barb.  70-78.  Our  statutes  have  not  altered  this  rule.  The 
fact  that  negligence  is  a  question  for  the  jury  under  our  law 
and  practice  hardly  can  so  alter  the  law  as  to  prevent  the  courts 
from  supervising  their  finding  and  setting  the  verdict  aside 
where  there  is  no  evidence  of  legal  negligence.  So  that  con- 
ceding that  plaintiff  did  not  lock  and  bolt  his  door,  and  that 
the  lock  and  bolt  were  perfect,  in  the  absence  of  notice  of  a 
regulation  published  to  him  according  to  law,  he  would  not  be 
legally  negligent  in  not  doing  so;  and  certainly  in  the  absence 

206 


MUECHISON  V.  SEEGENT.  §  61 

of  legal  notice  to  deposit  valuables  in  the  safe  or  at  the  office, 
he  was  not  in  the  eye  of  the  law  negligent  in  not  depositing 
there  the  money  he  used  on  his  travels,  and  the  accompaniment 
of  his  person,  his  watch. 

[Omitting  a  question  of  evidence.] 

On  the  conflict  of  testimony  on  these  points,  however,  it  is 
not  our  habit  to  interfere  with  the  finding  of  the  jury;  and  a 
reversal  of  the  court  below  is  put  on  the  points  that  the  register 
was  improperly  admitted  in  evidence ;  that  the  charge  on  the 
subject  of  the  notice,  which  the  register  was  illegally  admitted 
to  give,  is  therefore  erroneous ;  and  that  without  notice  of  some 
reasonable  rule  or  regulation  of  the  inn  to  the  guest,  there  is 
no  sufficient  proof  in  law  of  negligence  in  the  plaintiff,  which 
caused  his  loss,  to  rebut  and  overcome  that  gross  negligence 
which  the  law  fixes  by  its  positive  presumption  upon  the  land- 
lord. 

Judgment  reversed. 


207 


OF  EXTRAORDINARY  LOCATIO  BAILMENTS. 

OF  COMMON  CARRIERS. 

CHAPTER  X. 

OF   COMMON   aVRRIERS  OF   GOODS. 

(jlf   7C62.     FISH  V.  CHAPMAN, 
2  Ga.  349;  46  Am.  D.  393.     1847. 

Action  on  a  special  contract  of  carriage. 

By  Court,  Nisbet,  J.  The  plaintiff  in  error,  William  Fish, 
received  at  the  then  head  of  the  Central  Railroad  from  the 
agent  of  transportation  on  that  road,  certain  packages  of  goods 
belonging  to  the  defendants  in  error,  Chapman  &  Ross,  which 
by  a  special  contract  he  promised  to  deliver  in  good  order  and 
condition  at  Macon,  unavoidable  accidents  only  excepted.  In 
attempting  to  cross  a  stream  his  wagon  was  upset  and  the  goods 
damaged.  Chapman  &  Ross  brought  suit  against  him  to  re- 
cover the  loss  sustained  by  the  injury  done  to  the  goods.  A 
number  of  points  are  made  in  the  assignment,  and  some  of 
them  of  great  practical  importance  in  this  community.  They 
grow  out  of  the  construction  which  the  court  below  put  upon 
the  contract  for  the  carrying  of  these  goods  above  recited.  I 
shall  not  consider  each  point  separately,  believing  that  all  of 
them  will  be  discussed  and  decided  in  those  which  I  shall  par- 
ticularly notice. 

The  court  below  decided  that  the  plaintiff  in  error  under  his 
contract  with  Chapman  &  Ross  was  a  common  carrier,  to  which 
opinion  he  excepts.  The  evidence  upon  this  point  is  the  con- 
tract and  nothing  more.  It  does  not  appear  that  carrying  was 
his  habitual  business;  all  that  does  appear  from  the  record  is, 
that  he  undertook  upon  a  special  contract,  and  upon  this  occa- 
sion, to  haul  on  his  o"\vn  wagon  for  a  compensation  specified, 
the  goods  of  the  defendants  from  the  then  terminus  of  the  Cen- 
tral Railroad  to  the  city  of  Macon.  Does  such  an  undertaking 
make  him  a  common  carrier?  That  is  the  question,  and  w^e  are 
inclined  to  answer  it  in  the  negative.  A  common  carrier  is  one 
who  undertakes  to  transport  from  place  to  place  for  hire,  the 

208 


FISH  V.  CHAPMAN.  §  62 

goods  of  such  persons  as  think  fit  to  employ  him.  Such  is  a 
proprietor  of  wagons,  barges,  lighters,  merchant  ships,  or  other 
instruments  for  the  public  conveyance  of  goods.  See  Mr. 
Smith's  able  commentary  on  the  case  of  Coggs  v.  Bernard,  1 
Smith's  Lead.  Cas.  369,  7th  Am.  ed. ;  Forward  v.  Pittard,  1  T. 
R.  27;  Morse  v.  Slue,  2  Lev.  69;  S.  C,  1  Vent.  190;  S.  C,  Id. 
238 ;  Rich  v.  Kneeland,  Cro.  Jac.  330 ;  Maving  v.  Todd,  1  Stark. 
72;  Brooke  v.  Pickwick,  4  Bing.  218.  Railway  companies  are 
common  carriers:  Palmer  v.  Grand  Junction  Railway  Co.,  4 
Mee.  &  W.  749. 

"Common  carriers  (says  Chancellor  Kent)  undertake  gener- 
ally and  for  all  people  indifiPerently,  to  convey  goods  and  deliver 
them  at  a  place  appointed,  for  hire,  and  with  or  without  a 
special  agreement  as  to  price:"  2  Kent,  598.  "It  is  not  (says 
Mr.  Justice  Story)  every  person  who  undertakes  to  carry  goods 
for  hire,  that  is  deemed  a  common  carrier.  A  private  person 
may  contract  with  another  for  the  carriage  of  his  goods  and  in- 
cur no  responsibility  beyond  that  of  an  ordinary  bailee  for  Jnre, 
that  is  to  say,  the  responsibility  of  ordinary  diligence.  To  bring 
a  person  under  the  description  of  a  common  carrier,  he  must 
exercise  it  as  a  public  employment ;  he  must  undertake  to  carry 
goods  for  persons  generally,  and  he  must  hold  himself  out  as 
ready  to  engage  in  the  transportation  of  goods  for  hire,  as  a 
business  and  not  as  a  casual  occupation  pro  hue  vice:"  Story  on 
Bail.,  sec.  495.  A  common  carrier  is  bound  to  convey  the  goods 
of  any  person  offering  to  pay  his  hire,  unless  his  carriage  be  al- 
ready full,  or  the  risk  sought  to  be  imposed  upon  him  extraor- 
dinary, or  unless  the  goods  be  of  a  sort  which  he  can  not  convey 
or  is  not  in  the  habit  of  conveying:  Jackson  v.  Rogers,  2  Show. 
327;  Riley  v.  Home,  5  Bing.  217;  Lane  v.  Cotton,  1  Ld.  Raym. 
646;  Edwards  v.  Sherratt,  1  East,  604;  Batson  v.  Donovan,  4 
Barn.  &  Aid.  21 ;  2  Kent,  598 ;  Elsee  v.  GatWard,  5  T.  R.  143 ; 
Dwight  v.  Brewster,  1  Pick.  50,  11  Am.  Dec.  133;  Jencks  v. 
Coleman,  2  Sumn.  221 ;  Story  on  Bail.  322,  323 ;  Patton  v.  Ma- 
grath,  Dudley's  L.  and  Eq.  159,  31  Am.  Dec.  552. 

It  will  be  seen  hereafter  we  hold  that  according  to  the  com- 
mon law,  as  of  force  in  this  country  in  1776,  a  common  carrier 
can  not  vary  or  limit  his  liability  by  notice  or  special  accept- 
ance, and  shall  advert  to  this  subject  again.  For  the  present 
we  state  the  proposition  broadly,  that  he  is  in  the  nature  of  an 
insurer  of  the  goods  intrusted  to  his  care,  and  is  responsible  for 
every  injury  sustained  by  them  occasioned  by  any  means  what- 
ever, except  only  the  act  of  God  and  the  king's  enemies:  1  Inst. 
89,  Dale  v.  Hall,  1  Wils.  281 ;  Covington  v.  Willan,  Gow.  115 ; 
Davis  V.  Garrett,  6  Bing.  716 ;  2  Kent.  597 ;  Coggs  v.  Bernard, 
14  209 


§  62  OF  COiXMOX  CAEEIEES  OF  GOODS. 

2  Ld.  Raym.  918 ;  Forward  v.  Pittard,  1  T.  R.  27 ;  Trent  Nav. 
Co.  V.  Wood,  3  Esp.  127;  Riley  v.  Ilorne,  5  Bing.  217.  It  is 
from  these  definitions,  and  from  the  two  propositions  stated, 
that  we  are  to  determine  what  constitutes  a  person  a  common 
carrier.  I  infer  then  that  the  business  of  carrying  must  be 
habitual  and  not  casual.  An  occasional  undertaking  to  carry 
goods  will  not  make  a  person  a  common  carrier;  if  it  did,  then 
it  is  hard  to  determine  who,  in  a  planting  and  commercial  com- 
munity like  ours,  is  not  one ;  there  are  few  planters  in  our  own 
state  owning  a  wagon  and  team,  who  do  not  occasionally  con- 
tract to  carry  goods.  It  would  be  contrary  to  reason,  and  ex- 
cessively burdensome,  nay,  enormously  oppressive,  to  subject  a 
man  to  the  responsibilities  of  a  common  carrier,  who  might 
once  a  year,  or  oftener  at  long  intervals,  contract  to  haul  goods 
from  one  point  in  the  state  to  another.  Such  a  rule  would  be 
exceedingly  inconvenient  to  the  whole  community,  for  if  estab- 
lished, it  might  become  difficult  in  certain  districts  of  our  state 
to  procure  transportation. 

The  undertaking  must  be  general  and  for  all  people  indiffer- 
ently. The  undertaking  may  be  evidenced  by  the  carrier's  own 
notice,  or  practically  by  a  series  of  acts,  by  his  known  habitual 
continuance  in  this  line  of  business.  He  must  thus  assume  to  be 
the  servant  of  the  public,  he  must  undertake  for  all  people.  A 
special  undertaking  for  one  man  does  not  make  a  wagoner,  or 
anybody  else,  a  common  carrier.  I  am  very  well  aware  of 
the  importance  of  holding  wagoners  in  this  country  to  a  rigid 
accountability;  they  are  from  necessity  greatly  trusted,  valu- 
able interests  are  committed  to  them,  and  they  are  not  always 
of  the  most  careful,  sober,  and  responsible  class  of  our  citizens. 
Still  the  necessity  of  an  inflexible  adherence  to  general  rules 
we  can  not  and  wish  not  to  escape  from.  To  guard  this  point, 
therefore,  we  say,  that  he  who  follows  wagoning  for  a  liveli- 
hood, or  he  who  gives  out  to  the  world  in  any  intelligible  way 
that  he  will  take  goods  or  other  things  for  transportation  from 
place  to  place,  whether  for  a  year,  a  season,  or  less  time,  is  a 
common  carrier  and  subject  to  all  his  liabilities.  One  of  the 
obligations  of  a  common  carrier,  as  we  have  seen,  is  to  carry 
the  goods  of  any  person  offering  to  pay  his  hire;  with  certain 
specific  limitations  this  is  the  rule.  If  he  refuse  to  carry,  he  is 
liable  to  be  sued,  and  to  respond  in  damages  to  the  person 
aggrieved,  and  this  is  perhaps  the  safest  test  of  his  character. 
By  this  test  was  Mr.  Fish  a  common  carrier?  There  is  no  evi- 
dence to  make  him  one  but  his  contract  with  Chapman  &  Ross. 
Suppose  that  after  executing  this  contract,  another  application 
had  been  made  to  him  to  carry  goods,  which  he  refused,  could 

210 


FISH  V.  CHAPMAN.  §  62 

he  be  made  liable  in  damages  for  such  refusal  upon  this  evi- 
dence? Clearly  not.  There  is  not  a  case  in  the  books,  but  one, 
to  which  I  shall  presently  advert,  which  would  make  him  liable 
upon  proof  of  a  single  carrying  operation. 

The  extent  of  his  liability,  and  his  inability  to  vary  that  lia- 
bility by  notice  or  special  acceptance,  is  another  test.  A  com- 
mon carrier  is  liable  at  all  events,  but  for  the  act  of  God  and 
the  king's  enemies;  and  he  can  not  limit  or  vary  that  liability. 
Whereas  a  carrier  for  hire  in  a  particular  case,  is  only  answer- 
able for  ordinary  neglect,  unless  he  by  express  contract  assumes 
the  risk  of  a  common  carrier;  his  liability  may  be  regulated  by 
his  contract.  We  do  not  think  this  undertaking  would  give  to 
Mr.  Fish  that  character  which  would  preclude  him  from  defin- 
ing his  liability  in  any  other  contract.  By  this  contract  he  may 
be  liable  pro  hac  vice  as  a  common  carrier,  for  that  is  a  different 
thing.  Upon  these  views  we  predicate  the  opinion,  that  the 
plaintiff  in  error  was  not  a  common  carrier.  From  the  way  in 
which  the  opinion  of  the  court  is  expressed  in  the  bill  of  excep- 
tions, I  am  left  somewhat  in  doubt  whether  the  able  judge  pre- 
siding in  this  cause  intended  to  say  that  the  plaintiff  in  error 
was  a  common  carrier,  or  that  under  his  contract  he  was  liable 
as  such.  If  the  former,  we  think  he  erred;  and  if  the  latter, 
as  we  shall  mare  fully  show,  we  think  with  him.  In  either 
event  we  shall  not  send  the  case  back;  for  if  he  meant  to  say 
that  the  plaintiff  upon  general  principles  was  a  common  carrier, 
thinking,  as  we  do,  that  he  is  liable  under  this  contract  as  such, 
he  will  not  be  benefited  by  the  case's  going  back. 

In  conflict  with  these  views,  it  has  been  held  in  Pennsylvania, 
that  "a  wagoner  who  carries  goods  for  hire,  is  a  common  car- 
rier, whether  transportation  be  his  principal  and  direct  busi- 
ness, or  an  occasional  and  incidental  employment:"  Gibson,  C. 
J.,  in  Gordon  v.  Hutchinson,  1  Watts  &  S.  285,  37  Am.  Dec. 
464.  This  decision  no  doubt  contemplates  an  undertaking  to 
carry  generally,  without  a  special  contract,  and  does  not  deny 
to  the  undertaker  the  right  to  define  his  liability.  There  are 
cases  in  Tennessee  and  New  Hampshire  which  favor  the  Penn- 
sylvania rule,  but  there  can  be  but  little  doubt  that  that  case  is 
opposed  to  the  principles  of  the  common  law,  and  its  rule 
wholly  inexpedient :  See  Story  on  Bail.,  sees.  457,  495 ;  Bac. 
Abr.,  Carriei",  A. ;  Robinson  v.  Dunmore,  2  Bos.  &  Pul.  416 ; 
Hodgson  V.  Fullarton,  4  Taunt.  787;  Jones'  Bail.,  121;  Satterlee 
V.  Groat,  1  Wend.  272;  Hatchwell  v.  Cooke,  6  Taunt.  577;  2 
Kent,  597.  Assuming,  then,  that  Mr.  Fish  was  not  a  common 
carrier,  what  is  he?  This  is  a  bailment  for  hire,  '^locatio  operis 
rnerciiim  vehendaruni;"  the  fifth  in  the  learned  classification  of 

211 


§  62  OF  COMMON  CAEEIEES  OF  GOODS. 

bailments,  made  by  Holt,  C.  J.,  in  Coggs  v.  Bernard,  2  Ld. 
Eaym.  918.  Mr.  Fish  is  a  private  person  contracting  to  earrj- 
for  hire.  The  next  question  is,  what  are  his  liabilities?  And 
this  brings  us  to  the  main  point  of  error  charged  upon  the  court 
below,  and  that  is,  that  it  erred  in  ruling  that  according  to  his 
contract  the  plaintiff  in  error  was  liable  as  a  common  carrier. 
In  all  cases  of  carrying  for  hire  by  a  private  person,  we  state 
that  he  is  bound  to  ordinary  diligence  and  a  reasonable  exer- 
cise of  skill,  and  is  not  responsible  for  any  losses  DLOJt.aacasioned 
by  ordinary  negligence,  unless  he  has  expressly,  by  -the  terms 
of  his  contract,  taken  upon  himself  such  risk :  Story  on  Bail., 
sec.  457 ;  Coggs  v.  Bernard,  2  Ld.  Raym.  909,  917,  918 ;  Hodg- 
son V.  Fullarton,  4  Taunt.  787 ;  Hatchwell  v.  Cooke,  6  Id.  577 ; 
2  Marsh.  Ins.  293;  Jones  on  Bail.  103,  106,  121;  1  Bell's  Com. 
461,  463,  467;  Robinson  v.  Dunmore,  2  Bos.  &  Pul.  416;  Brind 
V.  Dale,  8  Car.  &  P.  207 ;  2  Kent,  597. 

In  this  case  there  is  a  special  contract  defining  the  party's  lia- 
bility, and  he  does  not,  therefore,  come  under  the  rule  last 
stated;  he  is  liable  according,  to  his  contract.  There  are  two 
things  to  be  carefully  noted  in  it,  to  wit:  1.  The  undertaking 
of  the  bailee  (having,  as  the  receipt  expresses  it,  received  the 
goods  in  "good  order  and  condition"),  to  deliver  them  "in  like 
good  order  and  condition ; "  2.  The  qualification  of  the  liability 
of  the  bailee,  which  is  expressed  in  these  words,  to  wit,  "un- 
avoidable accidents  only  excepted."  As  we  understand  it,  the 
contract  means  that  the  plaintiff  in  error  will  deliver  the  goods 
in  good  order  and  condition,  unless  prevented  by  unavoidable 
accident.  If  the  exception  were  out  of  the  contract,  what  then 
would  be  the  liability  of  Mr.  Fish?  Upon  the  authority  of  the 
case  of  Robinson  v.  Dunmore,  2  Bos.  &  Pul.  416,  I  should  be 
inclined  to  hold  that  the  undertaking  to  deliver  the  goods  in 
good  order  and  condition,  is  equivalent  to  a  warranty  to  carry 
them  safely,  or  to  deliver  them  safely.  If  it  is,  Mr.  Fish,  ac- 
cording to  that  ease,  would  be  liable  as  a  common  carrier:  See 
Story  on  Bail.,  see.  457;  Robinson  v.  Dunmore,  2  Bos.  &  Pul. 
416,  supra. 

But  we  do  not  rest  our  decision  upon  this  view  of  the  con- 
tract; we  look  at  that  with  the  exception  in  it.  Wliat,  then,  is 
the  effect  of  the  exception?  "We  think  it  is  to  make  him  liable 
at  all  events,  and  for  everything  except  for  unavoidable  acci- 
dents. It  remains,  then,  to  inquire  into  and  determine  what  is 
the  legal  meaning  and  effect  of  these  words.  And,  first,  it  may 
be  material  to  say,  that  the  word  unavoidable  is  not  the  word 
usually  used  in  the  books  in  this  connection,  but  inevitable. 
And,  further,  to  say,  that  these  words  are  in  legal  as  well  as 

212 


FISH  V.  CHAPMAN.  §  62 

common  parlance,  synonymous.  Unavoidable  accidents  are,  in 
our  opinion,  the  acts  of  God.  The  latter  words  express  the 
same  acts,  and  no  more  than  the  former ;  the  two  phrases  mean 
the  same  thing:  See  Story  on  Bail.,  sees.  25,  511;  2  Kent.  597. 

What,  then,  are  acts  of  God  or  unavoidable  accidents?  For 
it  is  from  these  only  that  this  party  is  protected.  By  the  act  of 
God  is  meant,  any  accident  produced  by  physical  causes  which 
are  irresistible;  such  as  lightning,  storms,  perils  of  the  sea, 
earthquakes,  inundations,  sudden  death,  or  illness:  Story  on 
Bail.,  sec.  25;  2  Kent,  597.  The  act  of  God  excludes  all  idea 
of  human  agency:  McArthur  and  Hurlbut  v.  Sears,  21  Wend. 
190.  In  this  case  it  is  said,  "no  matter  what  degree  of  pru- 
dence may  be  exercised  by  the  carrier  or  his  servants,  although 
the  delusion  by  which  it  is  baffled,  or  the  force  by  which  it  is 
overcome  be  inevitable,  yet,  if  it  be  the  result  of  human  means, 
the  carrier  is  responsible : ' '  See  also  Backhouse  v.  Sneed,  1  Mur- 
phy, 173 ;  2  Bailey,  157 ;  Id.  421.  As  the  exception  in  this  con- 
tract extends  only  to  unavoidable  accident,  or  acts  of  God, 
and  does  not  embrace  the  king's  enemies,  the  bailee  could  not  be 
protected  from  liability  of  losses  occasioned  by  them.  Even  if 
the  goods  had  been  destroyed  by  the  public  enemy,  he  would 
have,  in  that  event,  been  liable.  The  liability  of  common  car- 
riers goes  even  yet  further;  for  if  goods  committed  to  them 
are  lost  by  their  neglect,  through  the  agency  of  natural  causes 
which  are  in  themselves  irresistible,  they  are  liable;  so  rigid  and 
severe  are  the  obligations  and  duties  of  this  common  but  not 
very  well  understood  calling.  Our  opinion  is,  then,  that  the 
exception  of  unavoidable  accidents  excludes  all  other  excep- 
tions in  this  case,  "  expressio  unius  est  exclusio  alterius." 

And  that  Mr.  Fish  was  liable  atall  events  and  on  every  ac- 
count, but  for  losses  occasioned  Tiyl'unavoidable  accidents ;  that 
unavoidable  or  inevitable  accidents  are  the  same  with  the  acts 
of  God;  and  as  common  carriers  are  liable  for  losses  on  every 
account  but  for  the  acts  of  God  and  the  king's  enemies,  so, 
therefore,  is  his  liability  the  same  as  that  of  a  common  carrier, 
except  in  so  far  as  it  is  greater  in  this,  that  he  is  not,  by  his 
contract,  protected  as  the  common  carrier  is  at  common  law, 
against  losses  caused  by  the  public  enemy.  The  upsetting  of 
the  wagon  on  a  decayed  bridge  across  a  stream,  which  was  the 
accident  which  occasioned  the  loss  in  this  case,  is  not,  in  our 
judgment,  an  unavoidable  accident.  We  therefore  find  no  error 
in  the  court,  in  holding  that  ]\Tr.  Fish  was  on  his  contract  liable' 
as  a  common  carrier.  With  these  views  of  this  contract,  we  do 
not  conceive  that  it  is  at  all  important  to  say  a  word  upon  the 
question  of  negligence. 

213 


§  62  OF  COMMON  CAEEIEES  OF  GOODS. 

I  have  said  that  a  common  carrier  can  not  vary  his  liability, 
as  it  existed  at  common  law  in  1776,  by  notice  or  special  ?>«- 
ceptance.  On  account  of  the  importance  of  this  subject,  I 
propose  to  give  it  a  more  minute  exposition.  This  is  an  age  of 
railroads,  steamboat  companies,  stage  companies,  locomotion, 
and  transportation.  It  is  an  era  of  stir — men  and  goods  run  to 
and  fro — and  common  carriers  are  multiplied.  The  convenience 
of  the  people  and  safety  of  property  depend  more  now,  I  ap- 
prehend, upon  the  rules  which  regulate  the  liability  of  these 
public  ministers,  than  at  any  other  period  of  the  world's  his- 
tory. Steam,  as  a  transporting  power,  has  supplanted  almost 
all  other  agencies,  and  it  is  used  for  the  most  part  by  public 
companies  or  associations.  It  is  very  important  that  their  lia- 
bility should  not  only  be  accurately  defined,  but  publicly  de- 
clared. Anterior  to  1776,  the  common  carrier  was  an  insurer 
for  the  delivery  of  goods  intrusted  to  him,  and  liable  for  losses 
occasioned  by  all  causes  except  the  act  of  God  and  the  king's 
enemies,  and  without  the  power  to  limit  his  responsibility. 
That  this  was  the  law,  is  proven  by  the  numerous  authorities 
which  I  have  before  referred  to.  No  adjudication  before  that 
time  had  relaxed  its  stringent  but  salutary  severity.  It  is  of 
consequence  to  establish  this  fact,  because  the  common  law,  as 
it  was  usually  of  force  before  the  revolution,  is  made  obligatory 
upon  this  court  by  our  adapting  statute.  It  is  said  by  Mr. 
Story,  that  Lord  Coke  recognized  the  right  of  modification,  in 
a  note  to  Southcote's  Case;  and  also,  that  this  right  was  admit- 
ted in  Morse  v.  Slue,  1  Vent.  238.  These  are  dicta  which  recog- 
nized the  right  before  the  era  of  1776.  And  these  are  not 
adjudications — mere  dicta,  unsupported  by  authoritative  decis- 
ions— they  reverse  nothing,  establish  nothing.  Mr.  Story  does 
not  himself  claim  that  there  was  any  modification  of  the  rule 
before  that  era.  He  does  say,  that  the  right  to  modify  their 
common  law  liability  "is  now  (1832)  fully  recognized:"  Story 
on  Bail.,  see.  549.  All  the  cases  (and  they  are  numerous)  in 
support  of  his  statement,  are  since  our  revolution.  We  do  not, 
however,  question  that  statement.  Chancellor  Kent  says:  ''The 
doctrine  of  the  carrier's  exemption  by  means  of  notice,  from 
his  extraordinary  responsibility,  is  said  not  to  have  been  known 
until  the  ease  of  Forward  v,  Pittard,  1  T.  R.  27,  in  1785,  and 
it  was  finally  recognized  and  settled  by  judicial  decision,  in 
Nicholson  v.  Willan,  5  East,  507,  in  1804:"  2  Kent,  606. 

The  saying  to  which  the  chancellor  has  reference  was  made 
in  1818  by  Burrough,  J.,  in  Smith  v.  Home,  8  Taunt.  144,  and 
in  this :  ' '  The  doctrine  of  notice  was  never  known  until  the  case 
of  Forward  v.  Pittard,  1  T.  R.  27,  which  I  argued  many  years 

214 


FISH  V.  CHAPMAN,  §  62 

ago."  "I  lament  that  the  doctrine  of  notice  was  ever  introduced 
into  Westminster  Hall."  The  case  then  of  Forward  v.  Pittard 
is  the  first  in  which  the  doctrine  of  notice  is  recognized  accord- 
ing to  Mr.  Justice  Burrough,  and  that  was  in  1785.  It  was  not 
until  1804,  that  it  was  finally  settled  by  judicial  decision  in 
Nicholson  v.  Willan,  5  East,  507.  Twenty-eight  years  after  the 
declaration  of  independence,  the  question  of  notice  in  all  its 
bearings  was  reviewed  with  great  learning  and  ability  in  Ilollis- 
ter  V.  Nowlen,  19  "Wend.  234,  32  Am.  Dee.  455.  I  refer  to  that 
case  now  simply  for  the  purpose  of  saying  that  the  learned  judge 
in  that  opinion  declared  "that  the  doctrine  that  a  carrier  may 
limit  his  responsibility  by  notice,  was  wholly  unknown  to  the 
common  law  at  the  time  of  our  revolution.  Thus  we  think  it  is 
made  manifest,  that  in  1776,  by  the  common  law,  a  carrier  could 
not  limit  or  modify  his  extraordinary  responsibility  by  notice. 
That  it  has  been  allowed  since  that  time  we  admit,  and  to  this 
point  see  Nicholson  v.  Willan,  5  East,  507 ;  Clay  v.  Willan,  1  H. 
Bl.  298;  Harris  v.  Packwood,  3  Taunt.  264;  Evans  v.  Soule,  2 
Mau.  &  Sel.  1 ;  Smith  v.  Home,  8  Taunt.  146 ;  Batson  v.  Don- 
ovan, 4  Barn.  &  Aid.  39 ;  Riley  v.  Home,  5  Bing.  217 ;  Bodenham 
V.  Bennett,  4  Price,  34;  Down  v.  Fromont,  4  Camp.  41.  Still, 
however,  in  England,  by  common  law,  since  the  revolution,  a 
carrier  can  not  by  special  agreement  exempt  himself  from  all  re- 
sponsibility, so  as  to  evade  altogether  the  policy  of  the  law;  he 
can  not  exempt  himself  from  liability  in  case  of  gross  negligence 
and  fraud :  Story  on  Bail.,  sec.  549 ;  Eiley  v.  Home,  5  Bing.  218 ; 
S.  C,  2  Moo.  &  P.  331,  341 ;  Sleat  v.  Fagg,  5  Barn.  &  Aid.  342 ; 
Wright  V.  Snell,  Id.  350 ;  Birkett  v.  Willan,  2  Id.  356 ;  Beck  v. 
Evans,  3  Camp.  267;  S.  C,  16  East,  244;  Smith  v.  Home,  4 
Price,  31 ;  S.  C,  2  Moore,  18 ;  Newborn  v.  Just,  2  Car.  &  P.  76. 
"It  is  perfectly  well  settled  (we  quote  from  Kent)  that  the  car- 
rier, notwithstanding  notice  has  been  given  and  brought  home 
to  the  party,  continues  responsible  for  any  loss  or  damage  re- 
sulting from  gross  negligence  or  misfeasance  in  him  or  his  serv- 
ants:" 2  Kent,  607.  The  notices  which  are  allowed  in  England 
since  the  revolution,  go  only  the  length  of  protecting  the  car- 
rier from  that  responsibility  which  belongs  to  him  as  an  insurer. 
A  distinction  is  sought  to  be  drawn  in  some  of  the  books  be- 
tween a  notice  carried  home  to  the  knowledge  of  the  bailor  and 
a  special  acceptance  or  contract.  I  can  not  see  that  there  is  any 
diff^erence.  A  notice  contains  the  terms  and  conditions  upon 
which  the  carrier  will  serve  the  public,  or  some  limitation  of  his 
extraordinary  responsibility,  which  when  known  and  acted  upon 
by  his  customer,  is  a  contract,  as  much  so  as  if  the  same  stipu- 
lations were  made  by  a  separate  contract  with  each  individual 

215 


§  62  OF  COIOION  CAEKIEES  OF  GOODS. 

customer.  The  only  difference  is  in  the  mode  of  proof;  the  rule 
of  evidence  is  different,  and  that  is  all.  It  has  been  so  decided, 
particularly  in  New  York:  Gould  v.  Hill,  2  Hill  (N.  Y.),  624; 
Cole  V.  Goodwin,  19  Wend.  281,  32  Am.  Dec.  470. 

It  may  be  safely  asserted  that  the  American  decisions,  with 
scarcely  an  exception,  sustain  the  old  common-law  doctrine. 
Mr.  Wallace,  in  his  notes  to  Smith's  Leading  Cases,  holds  the 
following  language:  "That  it  is  possible  for  a  common  carrier 
by  either  a  general  notice  or  a  special  acceptance  to  limit  his  ex- 
traordinary liability,  is  a  position  which  it  is  believed  is  not  sup- 
ported by  the  authority  of  any  adjudged  case  in  the  United 
States:"  1  Smith's  Lead.  Cas.  183.  The  reverse  doctrine  is 
permanently  settled  in  New  York.  We,  then,  adhere  to  the 
sound  principles  of  the  common  law,  sifstained  by  the  coTtfts^f 
our  oMTi  union,  and  hold  notices,  receipts,  and  contracts,  inje- 
striction  of  the  liability  of  a  common  carrier,  as  known  and 
enforced  in  1776,  void,  because  they  contravene  the  policy_pf 
the  law :  Hollister  v.  Nowlen,  19  Wend.  234,  32  Am.  Dec.  455 ; 
Camden  and  Amboy  Transportation  Company  v.  Belknap,  21 
Id.  355;  Cole  v.  Goodwin,  19  Id.  251,  32  Am.  Dec.  470;  Gould 
V.  Hill,  2  Hill  (N.  Y.)  623;  Alexander  v.  Greene,  3  Id.  9,  20; 
Story  on  Bail.,  4th  ed.,  558,  note;  Atwood  v.  Eeliance  T.  Co., 
9  Watts,  87 ;  Barney  v.  Prentiss,  4  Harr.  &  J.  317,  7  Am.  Dec. 
670;  Jones  v.  Voorhees,  10  Ohio,  145;  2  Kent,  608,  note.  The 
British  parliament,  declaring  the  sense  of  the  British  lawyers 
to  a  very  great  extent,  has  restored  the  old  law  as  to  the  respon- 
sibility of  carriers.  See  stat.  11,  Geo.  IV.,  and  stat.  1,  Wm. 
IV.,  c.  68;  for  these  statutes,  consult  1  Harr.  Dig.  551,  tit. 
Carriers,  4th  ed.,  1837 ;  also,  Hollister  v.  Nowlen,  19  Wend.  243, 
249,  32  Am.  Dec.  455;  and  Smith's  Mercantile  Law,  233,  238, 
2d  Lond.  ed.,  1838. 

The  only  modification  of  the  common  law  rule  which  we  ad- 
mit, is  the  right  of  the  carrier,  by  notice  brought  home  to  the 
passenger,  to  require  the  latter  to  state  the  nature  and  value  of 
the  property  bailed,  and  to  avail  himself  of  any  fraudulent  acts 
or  sayings  of  the  bailor:  Cole  v.  Goodwin,  19  Wend.  251,  32 
Am.  Dec.  470;  Camden  etc.  R.  R.  Co.  v.  Belknap,  21  Id. 
354;  Id.  153;  Gould  v.  Hill,  2  Hill  (N.  Y.),  623.  The  reasons 
given  by  eminent  jurists  in  support  of  the  law  of  carriers,  as 
we  now  hold  it,  are  entirely  satisfactory,  and  apply  with  far 
greater  force  now  than  when  they  were  announced.  Holt,-C. 
J.,  in  his  opinion  in  Coggs  v.  Bernard,  an  opinion  which  alone 
has  made  him  immortal,  calls  it,  "a  politic  establishment,  con- 
trived by  the  policy  of  the  law  for  the  safety  of  all  persons,  the 
uecessity  of  whose  affairs  oblige  them  to  trust  these  sort  of  per- 

216 


FISH  V.  CHAPMAN.  §  62 

sons,  that  they  may  be  safe  in  their  ways  of  dealings,  for  else 
these  carriers  might  have  an  opportunity  of  undoing  all  per- 
sons that  had  any  dealings  with  them,  by  combining  with 
thieves,  etc.,  and  yet  doing  it  in  such  a  clandestine  manner  as 
would  not  be  possible  to  be  discovered.  And  that  is  the  reason 
the  law  is  founded  upon  in  that  point." 

In  Forward  v.  Pittard,  1  T.  R.  27,  Lord  Mansfield  says:  "The 
law  presumes  against  the  carrier,  to  prevent  litigation,  collusion, 
and  the  necessity  of  going  into  circumstance's  impossible  to  be 
unraveled."  It  is  not  the  reward  which  he  gets  by  virtue  of 
his  contract  which  charges  him  as  an  insurer;  it  is  true,  that  he 
is  paid  for  his  risks,  but  it  is  because  he  is  in  fact  a  public  offi- 
cer, in  whose  fidelity  the  public  is  compelled  to  trust,  and  whose 
infidelity  it  is  so  difficult,  if  not  impossible,  to  establish  by 
proof.  The  place  of  the  carrier  is  a  public  of^ce.  In  Ansell 
V.  Waterhouse,  2  Chit.  1,  Holroyd,  J.,  said:  "This  action  is 
founded  on  what  is  quite  collateral  to  the  contract,  if  any;  and 
the  terms  of  the  contract,  unless  changing  the  duty  of  a  com- 
mon carrier,  are  in  this  case  quite  immaterial.  The  declaration 
states  an  obligation  imposed  upon  him  by  law.  This  is  an  action 
against  a  person  who,  by  ancient  law,  held  as  it  were  a  public 
office,  and  was  bound  to  the  public.  This  action  is  founded  on 
the  general  obligation  of  the  law."  The  reasons  of  the  rule  may 
be  summed  up  as  follows : 

The  carrier  is  recognized  as  a  public  agent;  for  his  services 
he  is  entitled  to  ample  reward,  and  is  not  bound  to  perform 
them  unless  it  is  paid  or  tendered;  ex  necessitate  rei  the  most 
unqualified  confidence  is  reposed  in  him;  this  confidence  is  in- 
dispensable to  the  exercise  of  his  vocation.  From  the  nature 
of  his  calling,  the  utmost  facilities  are  at  his  control  for  fraudu- 
lent conduct  and  collusive  combinations,  and  for  the  same  rea- 
son his  frauds  or  combinations  are  difficult  of  proof.  He  enters 
into  this  line  of  business  voluntarily,  and  with  a  knowledge  of 
all  its  hazards,  for  he  is  justly  presumed  to  know  the  laws  of 
the  land.  The  law,  then,  looking  to  the  great  interests  of  com- 
tnerse,  and  guarding  with  parental  care  the  rights  of  the  great- 
est number,  makes  him  an  insurer  of  the  property  delivered  to 
him.  With  what  resistless  force  does  not  this  reasoning  apply 
to  the  ten  thousand  incorporations  of  our  own  country  ?  Strong 
in  associated  wealth;  strong  in  the  mind  which  is  usually  en- 
listed in  their  management;  and  yet  stronger,  far  stronger,  in 
the  large  immunities  and  extraordinary  privileges  with  which 
their  charters  invest  them.  If  these,  as  carriers,  can  vary  their 
liability  at  all,  at  what  limits  does  the  power  stop?  Wliere  are 
its  boundaries  1    Outside  of  the  obligations  which  their  charters 

217 


§  62  OF  COMMON  CAKEIEES  OF  GOODS. 

impose,  there  would  be  neither  bounds  not  limitations;  the  citi- 
zens would  be  at  their  mercy,  bound  by  their  power  and  subject 
to  their  caprices.  The  inconveniences  of  the  modern  English 
rule  are  well  portrayed  by  Bronson,  J.,  in  his  opinion  in  Hollis- 
ter  V.  Nowlen,  supra,  while  exhibiting  its  effects  in  England : 

"Departing  as  it  did  (says  Mr.  Bronson)  from  the  simplicity 
and  certainty  of  the  common  law  rule,  it  proved  one  of  the  most 
fruitful  sources  of  legal  controversy  which  has  existed  in  mod- 
ern times.  "When  it  was  once  settled  that  a  carrier  might  re- 
strict his  liability  by  a  notice  brought  to  his  employer,  a  multi- 
tude of  questions  sprung  up  in  the  courts  which  no  human 
foresight  could  have  anticipated.  Each  carrier  adopted  such  a 
form  of  notice  as  he  thought  best  calculated  to  shield  himself 
from  responsibility  without  the  loss  of  employment,  and  the 
legal  effect  of  each  particular  form  of  notice  could  only  be  set- 
tled by  judicial  decision.  Whether  one  who  had  given  notice 
that  he  would  not  be  answerable  for  goods  beyond  a  certain 
value,  unless  specially  entered  and  paid  for,  was  liable  in  case 
of  loss  to  the  extent  of  the  value  mentioned  in  the  notice,  or 
was  discharged  altogether;  whether  notwithstanding  the  notice 
he  was  liable  for  a  loss  by  negligence,  and  if  so,  what  degree  of 
negligence  would  charge  him ;  what  should  be  sufficient  evidence 
that  the  notice  came  to  the  knowledge  of  the  employer ;  whether 
it  should  be  left  to  the  jury  to  presume  that  he  saw  it  in  a  news- 
paper which  he  was  accustomed  to  read,  or  observed  it  posted 
up  in  the  office  where  the  carrier  transacted  his  business,  and 
then,  whether  it  was  painted  in  large  or  small  letters;  and 
whether  the  owner  went  himself  or  sent  his  servant  with  the 
goods,  and  whether  the  servant  could  read — these  and  many 
other  questions  were  debated  in  the  courts  whilst  the  public 
suffered  an  almost  incalculable  injury  in  consequence  of  the 
doubt  and  uncertainty  which  hung  over  this  important  branch 
of  the  law."  Well  might  the  judges  lament  that  the  doctrine 
was  ever  admitted  into  Westminster  hall:  See  1  Bell's  Com. 
474. 

Thus,  whether  satisfactorily  or  not,  have  we  disposed  of  the 
real  questions  made  in  this  cause.  Let  the  judgment  of  the 
court  below  be  affirmed. 


218 


ALLEN  V.  SACKEIDEE.  §  63 

63.     ALLEN  V.  SACKRIDER, 

37  N.  Y.  311.     1867. 

Parker,  J.  The  action  was  brought  against  the  defendants 
to  charge  them,  as  common  carriers,  with  damage  to  a  quantity 
of  grain  shipped  by  the  plaintiffs  in  the  sloop  of  the  defendants, 
to  be  transported  from  Trenton,  in  the  province  of  Canada,  to 
Ogdensburgh,  in  this  state,  which  accrued  from  the  wetting 
of  the  grain  in  a  storm. 

The  case  was  referred  to  a  referee,  who  found  as  follows: 
"The  plaintiffs  in  the  fall  of  1859  were  partners,  doing  a  busi- 
ness at  Ogdensburgh.  The  defendants  were  the  owners  of  the 
sloop  Creole,  of  which  Farnham  was  master.  In  the  fall  of 
1859,  the  plaintiffs  applied  to  the  defendants  to  bring  a  load 
of  grain  from  the  bay  of  Quinte  to  Ogdensburgh.  The  master 
stated  that  he  was  a  stranger  to  the  bay,  and  did  not  know 
whether  his  sloop  had  capacity  to  go  there.  Being  assured  by 
the  plaintiff's  that  she  had,  he  engaged  for  the  trip  at  three 
cents  per  bushel,  and  performed  it  with  safety.  In  November, 
1859,  plaintiffs  again  applied  to  defendants  to  make  another 
similar  trip  for  grain,  and  it  was  agreed  at  $100  for  the  trip. 
The  vessel  proceeded  to  the  bay,  took  in  a  load  of  grain,  and  on 
her  return  was  driven  on  shore,  and  the  cargo  injured  to  the 
amount  of  $1,346.34;  that  the  injury  did  not  result  from  the 
want  of  ordinary  care,  skill  or  foresight,  nor  was  it  the  result 
of  inevitable  accident  or  what  in  law  is  termed  the  act  of  God. 
From  these  facts  my  conclusions  of  law  are  that  the  defendants 
were  special  carriers,  and  only  liable  as  such,  and  not  as  com- 
mon carriers,  and  that  the  proof  does  not  establish  such  facts 
as  would  make  the  defendants  liable  as  special  carriers;  and 
therefore  the  plaintiffs  have  no  cause  of  action  against  them." 

The  only  question  in  the  case  is,  were  the  defendants  common 
carriers?  The  facts  found  by  the  referee  do  not  I  think  make 
the  defendants  common  carriers.  They  owned  a  sloop;  but  it 
does  not  appear  that  it  was  ever  offered  to  the  public  or  to  in- 
dividuals for  use,  or  ever  put  to  any  use,  except  in  the  two 
trips  which  it  made  for  the  plaintiffs,  at  their  special  request. 
Nor  does  it  appear  that  the  defendants  were  engaged  in  the 
business  of  carrying  goods,  or  that  they  held  themselves  out  to 
the  world  as  carriers,  or  had  ever  offered  their  services  as  such. 
This  casual  use  of  the  sloop  in  transporting  plaintiff's'  property 
falls  short  of  proof  sufficient  to  show  them  common  carriers. 

A  common  carrier'  was  defined  in  Gisbourn  v.  Hurst,  1  Salk. 
249,  to  be  "any  man  undertaking  for  hire,  to  carry  the  goods 

219 


§§  63,  64  OF  COiD-ION  CAEEIEES  OF  GOODS. 

of  all  persons  indifferently;"  and  in  Dwight  v.  Brewster,  1  Pick. 
50;  11  Am.  Dec.  133,  to  be  "one  who  undertook  for  hire  to 
transport  the  goods  of  such  as  choose  to  employ  Mm  from  place 
to  place."  In  Orange  Bank  v.  Brown,  3  Yfend.  161,  Chief  Jus- 
tice Savage  said:  "Every  person  w^ho  undertakes  to  carry  for 
a  compensation,  the  goods  of  all  persons  indifferently,  is  as  to  the 
liability  imposed,  to  be  considered  a  common  carrier.  The  dis- 
tinction between  a  common  carrier  and  a  private  or  special 
carrier  is,  that  the  former  holds  himself  out  in  common,  that 
is  to  all  persons  who  choose  to  employ  him,  as  ready  to  carry  for 
hire;  while  the  latter  agrees  in  some  special  case  with  some  pri- 
vate individual  to  carry  for  hire."  Story  Cont.,  §  752,  a.  The 
employment  of  a  common  carrier  is  a  public  one,  and  he  assumes 
a  public  duty,  and  is  bound  to  receive  and  carry  the  goods  of 
any  one  who  offers.  "On  the  whole,"  says  Prof.  Parsons,  "it 
seems  to  be  clear  that  no  one  can  be  considered  as  a  common 
carrier,  unless  he  has  in  some  way  held  himself  out  to  the 
public  as  a  carrier,  in  such  a  manner  as  to  render  him  liable 
to  an  action  if  he  should  refuse  to  carry  for  any  one  who 
wished  to  employ  him."     2  Pars.  Cont.  (5th  ed.)   166,  note. 

The  learned  counsel  for  the  appellant  in  effect  recognizes  the 
necessity  of  the  carrier  holding  himself  out  to  the  world  as  such 
in  order  to  invest  him  with  the  character  and  responsibilities  of 
a  common  carrier;  and  to  meet  that  necessity  says:  "The  Cre- 
ole was  a  freight  vessel,  rigged  and  manned  suitably  for  carry- 
ing freight  from  port  to  port;  her  appearance  in  the  harbor  of 
Ogdensburgh,  waiting  for  business,  was  an  emphatic  advertise- 
ment that  she  sought  employment."  These  facts  do  not  appear 
in  the  findings  of  the  referee,  and  therefore  can  not,  if  they 
existed,  help  the  appellants  upon  this  appeal. 

It  is  not  claimed  that  the  defendants  are  liable  unless  as  com- 
mon carriers.  Very  clearly  they  were  not  common  carriers; 
and  the  judgment  should  therefore  be  affirmed. 

All  concurring. 

Judgment  affirmed. 


7^4.     HALE  V.  NEW  JERSEY  STEAM  NAVIGATION  CO., 

15  Conn.  539;  39  Am.  D.  398.     1843. 

Action  on  the  case  for  the  loss  of  two  carriages  by  defendants 
as  common  carriers. 

Williams,  C.  J.     This  suit  was  brought  for  two  carriages, 
shipped  on  board  the  Lexington,  against  the  defendants,  as  com- 

220 


HALE  V.  NEW  JEESEY  STEAM  NAV.  CO.  §  64 

mon  carriers,  to  be  transported  in  said  boat  for  hire,  from  New 
York  to  Bo.':;ton  or  Providence.  The  boat  and  goods  were  de- 
stroyed by  fire  in  the  sound ;  and  a  verdict  being  given  for  the 
plaintiff,  the  defendants  excepted  to  the  charge,  and  claimed: 

1.  That  they  were  not  common  carriers,  nor  subject  to  the 
rules  that  govern  common  carriers.  It  was  long  since  settled, 
that  any  man,  undertaking  for  hire  to  carry  the  goods  of  all 
persons  indifferently,  from  place  to  place,  is  a  common  carrier; 
Gisbourn  v.  Hurst,  1  Salk.  249.  Common  carriers,  says  Judge 
Kent,  consist  of  two  distinct  classes  of  men,  viz.,  inland  car- 
riers by  land  or  water,  and  carriers  by  sea,  and  in  the  aggregate 
body  are  included  the  owners  of  stage-coaches,  who  carry  goods, 
as  well  as  passengers,  for  hire,  wagoners,  teamsters,  cartmen, 
the  masters  and  owners  of  ships,  vessels  and  all  water  craft,  in- 
cluding steam  vessels,  and  steam  tow-boats  belonging  to  inter- 
nal, as  well  as  coasting  and  foreign  navigation,  lightermen,  and 
ferrymen;  2  Kent's  Com.  598,  2d  ed.  And. there  is  no, difference 
bfitweoLa  land_and-a  water,  carrier :  Proprietors  of  Trent  Navi- 
gation V.  AA^ood,  3  Esp.  Cas.  127 ;  Elliott  v.  Rossell,  10  Johns,  7, 
6  Am.  Dec.  306 ;  Story  on  Bail.  319,  323. 

But  it  is  said  the  rule  established  is  a  harsh  one,  and  ought 
not  to  be  extended.  Chancellor  Kent  takes  a  very  different 
view  of  it.  He  speaks  of  it  as  a  great  principle  of  public  policy, 
which  has  proved  to  be  of  eminent  value  to  the  morals  and 
commerce  of  the  nation:  2d  vol.  602;  and  with  similar  views, 
this  court  has  said,  we  are  not  dissatisfied  with  the  reasons 
which  originated  the  responsibility  of  common  carriers,  and  be- 
lieve they  apply,  with  peculiar  force,  at  this  day,  and  in  this 
country,  as  it  respects  carriers  by  water,  more  especially  upon 
which  element  a  spirit  of  dangerous  adventure  has  grown  up, 
which  disregards  the  safety,  not  of  property  merely,  but  of 
human  life;  Crosby  v.  Fitch,  12  Conn.  419,  31  Am.  Dec.  745. 
And  while  we  are  not  called  upon  to  extend  the  principle,  j£e. 
can  not  yield  to  the  argument  that  common  carriers  are  not  to 
be  responsible  when  the  loss  arises  from  the  producing  agent 
of  the  propelling  power. 

If  the  defendants  are  common  carriers,  the  question  must  be 
merely  what  are  the  liabilities  of  common  carriers'?  The  an- 
swer is,  for  all  losses,  even  inevitable  accidents,  except  they 
arise  from  the  act  of  God,  or  the  public  enemy:  2  T.  R.  34;  2 
Ld.  Raym.  918.  And  by  the  act  of  God  is  meant,  something 
superhuman,  or  something  in  opposition  to  the  act  of  man: 
Forward  v.  Pittard,  1  T.  R.  33.  In  all  cases  except  of  that  de- 
scription^ the  carriers  warrant  the  safe  delivery  of  the  goods ;  per 
Kent,  C.  J.,  Elliott  V.  Rossell,  10  Johns.  7,  6  Am.  D.  306;  and 

221 


§  64  OF  COMMON  CAEEIEKS  OF  GOODS. 

masters  and  owners  of  vessels  are  liable  as  common  carriers,  as 
well  at  sea  as  in  port.  And  the  chief  justice  says  that  the  argu- 
ment is  not  well  supported,  that  this  doctrine  of  the  liability  of 
carriers,  is,  by  the  common  law  of  England,  to  be  confined  to 
transportations  by  water,  without  the  jurisdiction  of  the  realm. 
All  the  books  and  all  the  cases,  which  touch  the  subject,  lay  down 
the  rule  generally,  and  apply  it,  as  well  to  shipments  to  and  from 
foreign  ports,  as  to  internal  commerce.  It  is  true  that  in  Aymar 
V.  Astor,  6  Cow.  269,  the  then  chief  justice,  without  citing  a 
single  authority,  in  giving  the  opinion  of  the  court,  says  the 
master  of  a  vessel,  I  apprehend,  is  not  responsible,  as  a  common 
carrier,  for  all  losses,  except  they  happen  by  the  act  of  God  or 
the  enemies  of  the  country.  That  case  has,  it  is  believed,  never 
been  treated  as  law  in  New  York,  or  elsewhere.  It  is,  indeed,  re- 
pugnant to  prior  decisions,  says  Judge  Story.  It  is  not  to  be 
taken  for  sound  law,  says  Judge  Kent :  12  Conn.  414.  And  in 
McArthur  v.  Sears,  21  Wend.  190,  this  case  is  treated  as  a  con- 
fessed anomaly,  and  disapproved  as  contrary  to  decisions  in 
other  states,  and  even  in  their  own.  And  in  a  suit  against  the 
owners  of  a  steamboat  on  lake  Erie,  as  common  carriers,  it  was 
held,  that  nothing  would  excuse  them,  except  inevitable  acci- 
dent, without  the  intervention  of  man,  and  the  act  of  public 
enemies.  Judge  Cowen  denies  that  this  case  tends  to  repeal  the 
law  of  liability  of  common  carriers,  and  treats  it  as  turning  on 
the  exception  in  the  bill  of  lading. 

But  it  is  said,  there  is  no  case  where  the  liability  is  extended 
to  fire  on  the  high  seas.  If  the  principle  covers  such  cases,  then 
it  is  to  be  supposed  the  reason  such  cases  are  not  to  be  found,  is 
that  they  have  not  occurred,  or  were  not  contested.  If  the  car- 
rier is  subjected  for  the  loss  of  goods  burnt  on  land,  where  he 
was  in  no  fault,  we  see  no  reason  for  exempting  the  carrier  at 
sea,  under  similiar  circumstances.  We  apprehend  a  rule  of  pol- 
icy. Lord  Mansfield  says,  in  the  case  alluded  to,  to  prevent  liti- 
gation, collusion,  and  the  necessity  of  going  into  circumstances 
impossible  to  be  unraveled,  the  law  presumes  against  the  car- 
riers. He  is  in  the  nature  of  an  insurer.  Every  reason  here 
given  applies  as  well  to  the  OMOiers  of  a  steamboat  as  to  the 
wagoner,  whose  carriage  was  burnt  without  his  fault,  in  the 
barn  where  he  placed  it — the  same  danger  of  collusion,  of  litiga- 
tion, and  the  same  difficulty  in  unraveling  circumstances.  If 
the  policy  of  the  law  requires  that  one  shall  be  an  insurer,  we 
think  the  same  policy  requires  that  the  other  should  also  be 
so  treated.  And  if  it  be  true  that  trade  will  regulate  itself 
when  the  rule  is  understood,  compensation  will  be  made,  not 
only  in  proportion  to  the  labor,  but  to  the  risk.    And  in  a  recent 

222 


HALE  V.  NEW  JEESEY  STEAM  NAV.  CO.  §  64 

case  in  New  York,  steaiaboat  owners  are  treated  as  other  common 
carriers:  Powell  et  al.  v.  Myers,  26  Wend.  591. 

It  is  stated,  that  by  the  laws  of  Louisiana  a  different  rule  pre- 
vails in  regard  to  steamboats ;  but  as  the  laws  of  that  state  are, 
in  a  great  measure,  founded  upon  the  civil  law,  they  can  have 
but  little  influence  here. 

2.  The  defendants  claim,  in  the  next  place,  that  they  are  not 
liable  because  of  the  public  notice  which  they  gave,  that  they 
would  not  be  responsible  for  losses  other  than  what  arose  from 
the  fault  or  negligence  of  their  officers  or  servants;  and  they 
claim,  that  by  the  common  law  a  common  carrier  may  limit  his 
responsibility,  by  express  contract  or  by  public  notice  given  of 
such  intended  limitation;  in  support  of  which  they  cite  many 
cases  from  the  English  books,  where  that  doctrine,  after  some 
diversity  of  opinion,  has  been  recognized  and  settled.  On  the 
part  of  the  plaintiff,  it  is  claimed  that  these  decisions  are  mod- 
ern— all  since  we  were  separated  from  that  country — after  a  di- 
versit}^  of  opinion  in  the  English  courts,  and  now  regretted  by 
eminent  judges,  and  not  in  accordance  with  the  principles  of  the 
common  law;  and  that  they  have  been  rejected  in  New  York  as 
not  sound  law;  and  that,  as  this  contract  was  made  in  New 
York,  its  construction  must  be  regulated  by  that  law.  It  be- 
comes necessary,  therefore,  to  determine  by  what  law  this  con- 
struction of  the  contract  is  to  be  governed. 

It  appears  that  this  boat  was  in  the  business  of  transportation 
from  New  York  to  Providence,  that  the  plaintiff'  owned  car- 
riages, which  he  wanted  to  have  transported  to  Boston ;  that  the 
defendants  received  them  in  New  York,  to  convey  them  to  Bos- 
ton or  Providence;  and  that  they  were  lost  in  the  sound  off 
Long  Island,  near  Huntington;  and  the  question  is,  by  what 
law  is  this  contract  to  be  governed?  The  rule  upon  that  subject 
is  well  settled,  and  has  been  often  recognized  by  this  court,  that 
contracts  are  to  be  construed  according  to  the  laws  of  the  state 
where  made,  unless  it  is  presumed  from  their  tenor,  that  they 
were  entered  into  with  a  view  to  the  laws  of  some  other  state : 
Bartsch  v.  Atwater,  1  Conn.  409,  416 ;  Smith  v.  Mead,  3  Id.  255, 
8  Am.  Dec.  183;  Brackett  v.  Norton,  4  Id.  520,  10  Am.  Dec. 
179.  There  is  nothing  in  this  case,  either  from  the  location  of 
the  parties,  or  the  nature  of  the  contract,  which  shows,  that  they 
could  have  had  any  other  law  in  view,  than  that  of  the  place 
where  it  was  made.  Indeed,  as  the  goods  were  shipped  to  be 
transported  from  Boston  to  Providence,  there  would  be  the  most 
entire  uncertainty  what  was  to  be  the  law  of  the  case,  if  any 
other  rule  was  to  prevail.  We  have,  therefore,  no  doubt  that 
the  law  of  New  York,  as  to  the  duties  and  obligations  of  com- 

223 


§  64  OF  COMMON  CAERIEES  OF  GOODS. 

mon  carriers,  is  to  be  the  law  of  the  case.  And  while  we  agree 
with  the  defendants,  that  the  modern  English  cases  are  as  they 
claim,  and  authorized  the  common  carrier  to  limit  his  respon- 
sibility by  notice  to  that  effect;  we  are  equally  clear,  that  the 
courts  in  the  state  of  New  York  have  taken  a  very  different  view 
of  the  subject,  and  held,  that  the  rule  of  the  common  law  as  to 
the  liability  of  common  carriers,  was  a  rule  founded  upon  sound 
principles  of  policy,  to  protect  the  citizens  from  losses,  the  true 
cause  of  which  they  could  seldom  detect;  and  that  it  ought  not, 
in  this  way,  to  be  overthroT\'n  or  evaded.  In  Hollister  v.  Nowlen, 
19  Wend.  23-i,  32  Am.  Dec.  455,  the  supreme  court  of  that 
state  decided,  that  where  a_stage  proprietor  gave  notice  that  jiU 
baggage  should  be  at  the  risk  of  the  owner,  no  contract  could 
be  implied  from  such  notice,  although  it  was  brought  home  to 
the  owner.  So,  also,  in  the  case  of  Cole  v.  Goodwin  et  ah.  Id. 
251,  32  Am.  Dec.  470,  a  similar  decision  was  made ;  and  no  au- 
thority or  opinion  in  that  state  has  been  adduced  to  shake  or  in- 
validate these  decisions.  Without,  therefore,  giving  any  opin- 
ion as  to  the  law  of  this  state,  Avhich  the  case  does  not  require, 
we  can  not  doubt  that  suchjinotice,  by  the  laws,  of  N^w-York, 
cannot,  in^apy  manner,  affect  the  liability  of  these  defendants^ 
as  common  carriers.  And  these  decisions  are  certainly  sup- 
ported, in  a  most  able  manner,  by  the  learned  judges  who  have 
pronounced  them. 

3.  On  the  trial  below,  the  defendants  also  claimed,  that  a  bill 
of  lading  was  gi^en  restricting  their  liability,  and  by  accepting 
this,  the  plaintiffs- were  precluded  from  any  claim.  On  this 
point  the  judge  charged  the  jury,  that  by  th^|,laws  of  New  York, 
-^  neither_thejLQtice,  nor  the^'bill  of  lading,  would  chiinge_the_ 
.  liability  of  the  defendants.  To  the  last  part  of  the  charge,  as 
well  as  the  first,  the  defendants  object.  But  as  the  jury  have 
found  there  was  no  bill  of  lading,  in  this  case,  we  do  not  see 
any  necessity  for  discussing  that  question;  but  will  barely  ad- 
vert to  the  cases  in  the  state  of  New  York,  which  show  the 
ground  upon  which  that  opinion  was  based. 

In  Cole  V.  Goodwin,  19  Wend.  251,  32  Am.  Dee.  470,  notice 
was  given,  that  all  baggage  was  at  the  risk  of  the  owner;  of 
which  notice,  it  was  proved,  the  plaintiff  had  knowledge.  The 
plaintiff  got  out  of  the  stage,  and  left  his  trunk;  and  the  car- 
riage went  on,  and  the  trunk  was  lost;  and  Bronson.  J.,  said, 
that  coach  proprietors  are  answerable  as  common  carriers,  for 
the  baggage  of  passengers ;  and  that  they  can  not  limit  their  re- 
sponsibility, by  a  general  notice,  brought  home  to  the  employ- 
ers, are  now  settled  questions,  so  far  as  this  court  is  concerned. 
And  the  court  decided,  that  upon  these  facts,  the  plaintiff  could 

224 


HALE  V.  NEW  JERSEY  STEAM  NAV.  CO.  §  64 

recover.  Judge  Cowen,  in  an  elaborate  argument,  held,  that  the 
restrictions  imposed  upon  common  carriers  for  great  public  ob- 
jects, can  not  be  removed  by  any  stipulations  of  the  parties.  It 
is  said,  from  what  fell  from  Judge  Bronson  (who  concurred  in 
the  result) ,  in  the  former  case,  that  he  did  not  concur  in  this 
opinion.  In  a  subsequent  case  of  Alexander  v.  Greene,  3  Hill, 
20,  Judge  Bronson  says,  it  is  very  questionable  whether  inn- 
keepers and  common  carriers  can  contract  for  a  limited  liability. 
And  in  a  note,  the  reporter  says,  the  case  of  Gould  v.  Hill,  2 
Hill,  623,  was  not  then  decided.  It  was  therefore  thought,  by 
the  judge  who  tried  this  cause,  better  that  the  jury  should  pass 
upon  the  fact,  and  leave  the  question  to  be  examined  by  this 
court.  As  it  is,  we  are  not  called  upon  to  settle  the  law  of  New 
York  on  the  subject;  much  less  would  we  intimate  an  opinion, 
that  it  can  be  considered  as  the  law  of  this  state,  though  it  is 
supported  with  great  learning  and  ingenuity. 

4.  The  defendants,  however,  claim,  that  the  court  below,  aside 
from  any  question  arising  on  the  bill  of  lading,  gave  an  opinion 
to  the  jury  that,  notwithstanding  any  stipulations  of  the  par- 
ties restricting  the  liability  of  the  carriers,  they  would  be  liable 
in  this  case.  The  judge  who  tried  the  cause  below,  had  no  idea 
of  any  question  of  that  kind.  No  claim  was  made  but  what 
arose  from  the  notice  or  the  bill  of  lading.  And  we  think,  there 
is  nothing  upon  this  motion  which  can  be  fairly  referred  to 
anything  else.  What  are  the  facts  and  claims  stated  in  the 
motion?  The  defendants  claimed,  they  had  given  public  notice 
that  they  would  not  be  liable  for  losses,  except  what  arose 
from  want  of  care  or  liegligence  on  the  part  of  their  servants ; 
and  that  their  agents  were  not  authorized  to  receive  goods  on 
board,  without  delivering  a  bill  of  lading,  containing  such  re- 
strictions. They  further  claimed,  that  the  plaintiff  knew  of 
the  notice  given  as  above,  and  that  they  dealt  with  him  upon 
that  understanding.  They  then  complain,  that  as  to  the  restric- 
tions claimed  by  these  notices  in  their  bills  of  lading,  they 
could  not,  by  the  laws  of  Ncm'-  York,  limit  their  liability  as  com- 
mon carriers.  This  charge  met  all  the  evidence  offered  by  the 
defendants;  for  the  claim  of  the  defendants  is  founded  only 
upon  the  notice  and  the  bills  of  lading.  They  do,  indeed,  after 
setting  out  their  notice,  claim,  that  the  plaintiff  dealt  with 
them  upon  that  understanding.  By  this  nothing  can  be  meant 
or  intended,  but  the  understanding  which  is  implied  from  the 
notice  alluded  to ;  and  any  implication  against  the  bailor,  arising 
from  such  knowledge  or  understanding,  is  explicitly  repelled, 
in  the  cases  alluded  to  in  Hollister  v.  Nowlen,  19  Wend.  234, 
32  Am.  Dec.  455.  We  think,  therefore,  that  the  question  was 
15  225 


§  §  G4,  65  OF  COMMON  CAEEIERS  OF  GOODS. 

fully  presented  to  the  jury.     They  have  negatived  the  fact  as 
to  the  bill  of  lading;  and  the  effect  of  the  notice  has  been  set- 
tled by  the  supreme  court  of  the  state  of  New  York.     We  do 
not,  therefore,  see  any  ground  for  a  new  trial. 
In  this  opinion  the  other  judges  concurred.. 
New  trial  not  to  be  granted.  \\  ,  -  r*^  ^-^  • 


G5.    THOMPSON-HOUSTON  ELECTRIC  CO.  V.  SIMON. 

20  Ore.  60;  25  Pac.  B.  147;  23  Am.  St.  B.  86.     1890. 

Lord,  J.  This  is  an  action  to  condemn  a  right  of  way  for 
a  street  and  suburban  railway  operated  for  the  carrying  of 
passengers.  A  demurrer  was  filed  to  the  complaint  which  was 
sustained  by  the  court  below;  and  the  plaintiff  refusing  to 
proceed,  judgment  was  rendered  therein,  from  which  this  ap- 
peal is  taken.  The  contention  of  the  plaintiff  is,  that  our 
statute  authorizing  the  condemnation  of  land  for  a  right  of 
way  contemplates  the  exercise  of  such  power  as  much  by  street 
and  suburban  railways  propelled  by  horse-power  or  electricity 
as  railroads  where  cars  are  propelled  by  steam.  The  argu- 
ment is,  that  section  3239,  Hill's  Code,  which  provides  that 
"a  corporation  organized  for  the  construction  of  any  railway" 
may  appropriate  land  for  a  right  of  way,  by  the  use  of  the 
phrase  "any  railway,"  ex  vi  termini  includes  street  and  subur- 
ban railway  corporations  organized  to  transport  passengers  only, 
and  propelled  by  horse-power  or  electricity,  as  well  as  railroads 
authorized  to  transport  passengers  and  freight,  and  propelled 
by  steam;  that  the  terms  of  the  statute,  viewed  as  a  whole,  in- 
dicate and  import  that  it  was  intended  to  authorize  railway  cor- 
porations to  condemn  lands  for  the  use  of  their  road,  whether 
they  were  organized  to  carry  passengers  or  freight,  or  both, 
or  whether  they  were  propelled  by  steam  or  other  power.  To 
strengthen  the  construction,  that  it  is  not  necessary  that  the 
railway  corporation,  however  propelled,  should  be  formed  to 
carry  passengers  and  freight  to  entitle  it  to  exercise  the  power 
of  eminent  domain,  and  condemn  lands  for  its  use,  the  language 
of  section  3236  is  relied  upon  as  showing  that  this  distinction 
is  not  observed  with  reference  to  navigation  corporations  au- 
thorized to  construct  portage  railways,  wherein  it  reads,  ''for 
the  purposes  of  transporting  freight  or  passengers  across  any 
portage  on  the  line  of  such  navigation,  ....  in  like  manner 
and  with  like  effect  as  if  such  corporation  had  been  formed 
for  such  purpose."     To  this  it  is  answered  that  every  railway 

226 


THOMPSON-HOUSTON  ELECTRIC  CO.  v.  SIMON.  §  65 

corporation  for  the  construction  of  a  railroad  under  the  statute 
for  the  condemnation  of  lands  is  a  common  carrier,  and  that 
such  a  statute,  being  in  derogation  of  common  right,  is 
not  to  be  extended  by  implication.  Section  3254  of  the  statute, 
authorizing  the  condemnation  of  land  for  a  right  of  way,  pro- 
vides: "Every  corporation  formed  under  this  chapter  for  the 
construction  of  a  railway,  as  to  such  road  shall  be  deemed  com- 
mon carriers,  and  shall  be  entitled  to  collect  and  receive  a  just 
compensation  for  transportation  of  persons  or  property  over 
such  road."  The  argument  is,  that  a  common  carrier  is  a  car- 
rier of  goods  for  hire,  and  while  a  common  carrier  may 
carry  passengers,  and  combine  the  two  employments  of  carry- 
ing goods  and  passengers,  as  is  almost  universally  done  by  rail- 
roads, yet  as  a  corporation  for  the  construction  of  a  railway  it 
can  not  be  deemed  a  common  carrier  unless  it  is  formed  to  carry 
goods  and  passengers;  that  the  legislature  in  delegating  the 
right  of  eminent  domain  intended  only  that  such  railroads 
should  be  entitled  to  exercise  it  as  were  common  carriers  of 
freight  and  passengers;  hence  a  corporation  could  not  exercise 
the  right  of  eminent  domain  in  the  construction  of  a  railway 
organized  to  transport  passengers  only,  and  not  freight.  Much 
of  this  argument  is  based  on  the  technical  definition  of  a  com- 
mon carrier,  as  one  who  undertakes  for  hire  to  transport  the 
goods  of  such  as  choose  to  employ  him  from  place  to  place; 
so  that  before  a  corporation  can  be  deemed  a  common  carrier, 
it  must  of  necessity  include  in  its  business  the  transportation 
of  goods  or  freight  from  place  to  place.  There  is  usually  in 
a  railway  act  some  sections  which  have  the  efiPect  of  putting 
the  railway  company  on  the  footing  of  common  carriers :  2  Rob. 
Pr.  534.  But  whether  made  so  by  general  statute  or  by  their 
charters,  railroad  companies  are  held  to  be  common  carriers:  2 
Am.  &  Eng.  Ency.  of  Law,  781.  And  it  is  said  when  they  are 
made  so  by  the  express  provision  of  a  statute,  such  provision  will 
be  merely  declaratory  of  the  law  as  it  already  existed :  Hutchin- 
son on  Carriers,  sec.  67.  A  common  carrier  is  such,  because  his 
duties  partake  of  a  public  character.  "To  bring  a  person," 
says  Judge  Story,  "within  the  description  of  a  common  carrier, 
he  must  exercise  it  as  a  public  employment;  he  must  undertake 
to  carry  goods  for  persons  generally,  and  must  hold  himself 
out  as  ready  to  engage  in  the  transportation  of  goods  for  hire 
as  a  business,  and  not  as  a  casual  occupation  pro  hac  vice": 
Story  on  Bailments,  sec.  495.  To  constitute  one,  then,  a  com- 
mon carrier,  it  is  necessary  that  he  should  hold  himself  out  as 
such.  A  carrier  of  passengers  who  undertakes  to  carry  all  per- 
sons who  apply  to  him  for  transportation  is  engaged  in  a  pub- 

227 


§  §  65,  66  OF  COMMON  CAEEIEES  OF  GOODS. 

lie  employment,  and  is  a  public  or  common  carrier  of  passen- 
gers. 

"A  common  carrier  of  passengers,"  says  Judge  Thompson, 
"is  one  who  undertakes  for  hire  to  carry  all  persons,  indiffer- 
ently, who  may  apply  for  passage.  Railroad  companies,  the  own- 
ers of  ships,  ferries,  omnibuses,  street-cars,  and  stage-coaches  are 
usually  common  carriers  of  passengers":  Thompson  on  Carriers 
of  Passengers,  26,  note  1. 

It  is  true  that  carriers  of  passengers  are  not  common  carriers 
as  to  the  persons  of  those  whom  they  carry.  But  common  car- 
riers are  classified  as  carriers  of  goods  and  as  carriers  of  pas- 
sengers. The  reason  is,  their  employment  is  quasi  public,  and 
the  jjublic  have  an  interest  in  the  faithful  discharge  of  their 
duties.  "Every  common  carrier,"  said  Mulkey,  J.,  "has  the 
right  to  determine  what  particular  line  of  business  he  will 
follow.  If  he  elects  to  carry  freight  only,  he  will  be  under  no 
obligation  to  carry  passengers,  and  vice  versa.  So  if  he  holds 
himself  out  as  a  carrier  of  a  particular  kind  of  freight,  or  of 
freight  generally,  prepared  for  carriage  in  a  particular  way, 
he  will  only  be  bound  to  carry  to  the  extent  and  in  the  man- 
ner proposed.  He  will,  nevertheless,  be  a' common  carrier": 
Wiggins  Ferry  Co.  v.  East  St.  Louis  U.  R'y  Co.,  107  111.  451.  A 
common  carrier,  then,  may  be  either  a  carrier  of  passengers  or 
freight,  or  both.  The  argument,  then,  that  the  plaintiff  is  not 
the  kind  of  a  corporation  authorized  to  exercise  the  power  of 
eminent  domain  because  it  is  only  a  carrier  of  passengers,  and 
not  of  freight,  would  not  deprive  the  plaintiff  of  its  character 
as  a  common  carrier,  and  as  such  to  be  deemed  within  the  stat- 
ute. This  would  result  in  giving  to  the  statute  a  construction 
which  would  include  both  classes  of  carriers,  but  not  necessarily 
that  such  carriers  should  combine  both  employments;  it  might 
be  engaged  in  carrying  passengers  or  freight  or  both,  and  still 
be  deemed  a  common  carrier. 

(The  court  determined,  however,  that  the  statute  was  not  in- 
tended to  apply  to  such  an  electric  street  railway  as  that  in 
contemplation.)     Judgment  affirmed. 


^  66.    CHRISTENSON  V.  AMERICAN  EXPRESS  CO. 

15  Minn.  270;  2  Am.  B.  122.    1870. 

Action  against  defendants  as  common  carriers  for  the  loss  of 
two  chests  of  tea.  Defendants  answered  that  they  were  not 
common  carriers,  but  forwarders,  under  a  bill  of  lading  exempt- 

228 


CHEISTENSON  v.  AMEEICAN  EXPKESS  CO.  §  6Q 

ing  them  from  liability  for  loss  due  to  perils  of  navigation  or 
transportation.  The  tea  was  lost  while  in  charge  of  defendants' 
messenger  on  a  steamboat  not  owned  nor  controlled  by  defend- 
ants. Through  negligence  the  steamboat  struck  a  sunken  snag, 
causing  the  accident.     Judgment  for  plaintiffs. 

Berry,  J.  The  defendants  are  an  express  company,  engaged 
generally,  and  publicly,  in  the  business  of  transmitting,  for  hire, 
goods  from  place  to  place,  and,  among  others,  from  New  York 
to  Llankato.  At  different  points  to  which  their  business  extends 
they  establish  local  offices,  at  which  an  agent  is  stationed,  whose 
duty  it  is  to  receive  goods  transmitted,  and  deliver  the  same  to 
the  consignee,  as  well  as  to  receive  goods  for  transmission.  The 
defendants  own  no  vehicles  or  other  means  of  transportation, 
except  such  as  are  kept  at  their  local  offices,  and  used  solely  for 
the  purpose  of  carrying  goods  to  and  from  such  offices,  to  and 
from  their  customers,  at  the  places  where  the  offices  are  estab- 
lished. The  practice  of  the  company  is  to  transmit  goods  by 
steamboats,  railroads,  coaches,  etc.,  owned  and  controlled  by 
other  parties;  and  it  receives  to  its  own  use  the  entire  charges 
for  transportation.  A  messenger  in  the  company's  employ  ac- 
companies the  goods  as  they  are  being  transmitted,  to  take 
general  charge  of  the  same,  attend  to  their  transhipment,  and 
to  their  delivery  to  the  local  agent  at  the  point  of  destination.  A 
^qmmon  carrier  is  defined  to  be  "one  who  undertakes,  for  hire, 
to  transport  the  goods  of  such  as  choose  to  employ  him,  from 
place  to  place."  Dwight  v.  Brewster,  1  Pick.  (Mass.)  50,  53,  11 
Am.  D.  133 ;  2  Parsons  on  Contracts,  163 ;  1  Smith  L.  Cases,  301. 

In  Buckland  v.  Adams  Express  Co.,  97  Mass.  124,  93  Am.  D. 
68,  it  is  held,  that  one  whose  business  is  for  hire  to  take  goods 
from  the  custody  of  their  owner,  assume  entire  possession  and 
control  of  them,  transport  them  from  place  to  place,  and  deliver 
them  at  a  point  of  destination  to  consignees  or  agents,  there 
authorized  to  receive  them,  is  a  common  carrier,  although  he 
styles  himself  an  express  forwarder,  and  although  he  contracts 
with  others  to  transport  the  goods  in  vehicles  of  which  they 
are  the  owners,  and  the  movements  of  which  he  himself  does 
not  manage  or  control.  These  definitions  are  in  our  opinion  cor- 
rect, and  the  defendants,  falling  within  them,  must  be  re- 
garded as  common  carriers.  See,  also,  Sweet  v.  Barney,  23  N. 
Y.  335;  Russell  v.  Livingston,  19  Barb.  346;  2  Redf.  on  Rail- 
ways, 19,  30. 

This  action  is  brought  to  recover  $150,  for  two  chests  of  tea 
belonging  to  the  plaintiffs,  the  receipt  of  which  by  the  de- 
fendants for  transmission  from  New  York  to  Mankato,  and  the 

229 


§  66  OF  COMMON  CAEEIEKS  OF  GOODS. 

total  loss  of  which,  by  the  sinking  of  a  steamboat,  not  owned  or 
controlled  by  the  defendants,  but  upon  which  the  same  were 
being  transmitted,  are  admitted.  It  is  also  admitted  that  the 
boat  sank  in  consequence  of  running  upon  a  snag  in  the  Min- 
nesota river,  but  whether  this  was,  or  was  not,  owing  to 
negligence  on  the  part  of  those  managing  the  boat  is  a  matter 
of  dispute,  as  to  which  the  testimony  is  conflicting.  Suffice 
it  to  say,  however,  that  there  is  evidence  in  the  case  reasonably 
tending  to  sustain  the  finding  of  the  referee,  that  the  persons 
operating  the  boat  were  guilty  of  negligence  in  running  upon  the 
snag,  so  that  there  is  no  occasion  to  disturb  the  finding,  on  the 
ground  that  it  is  unsupported  by  the  evidence  in  this  respect. 
It  is  found  by  the  referee  that  Bass  and  Clark,  respondents'  con- 
signors, delivered  the  tea  to  the  defendants  at  New  York,  con- 
signed to  plaintiffs  at  Mankato,  and  at  the  time  of  such  delivery 
took  from  defendants  the  following  receipt : 

American  Express  Company,  e:^press  forwarders  and  foreign 
and  domestic  agents.  Principal  office  Nos.  57,  59  and  61  Hud- 
son street.    Branch  offices,  124  Broadway  and  542  Broadway. 

New  York,  April  29,  1867. 
Bass  and  Clark  delivered  to  us  two  chests  tea  marked  Christen- 
son  &  Bro.,  Mankato,  ]\Iinn.,  wdiich  we  are  to  forward  to  our 
agency  nearest  or  most  convenient  to  destination,  only  perils  of 
navigation  and  transportation  excepted,  and  it  is  hereby  ex- 
pressly agreed,  and  is  part  of  the  consideration  of  this  contract, 
that  the  American  Express  Company  are  not  to  be  held  liable 
for  any  loss  or  damage,  except  as  forwarders  only,  nor  for  any 
loss  or  damage  of  any  box,  package  or  thing,  for  over  $150,  unless 
the  just  and  true  value  thereof  is  herein  stated,  nor  for  any  loss 
or  damage  by  fire,  the  acts  of  God,  or  of  the  enemies  of  the 
government,  the  restraint  of  the  government,  mobs,  riots,  insur- 
rections, pirates  or  from  any  of  the  dangers  incident  to  a  time 
of  war,  nor  upon  any  property  or  thing,  unless  properly  packed 
and  secured  for  transportation,  nor  upon  any  fragile  article 
consisting  of  or  contained  in  glass. 

For  the  company,  SPENCE. 

At  common  law  a  common  carrier  is  an  insurer  of  the  goods 
intrusted  to  him,  and  he  is  responsible  for  all  losses  of  the 
same,  save  such  as  are  occasioned  by  the  act  of  God  or  the  pub- 
lic enemy.  Angell  on  Carriers,  §§  67,  148,  153;  New  Jersey 
JSteam  Nav.  Co.  v.  Merchants'  Bank,  6  How.  381. 

After  much  controversy,  it  may  now  be  taken  as  settled  by  tho 
great  preponderance  of  authority,  that  it  is  competent  for  a  com- 
mon carrier  to  modify  or  limit  his  common-law  liability  by  spe- 

230 


CHEISTENSON  v.  AMERICAN  EXPRESS  CO.  8  66 

cial  agreement  with  the  owner  of  the  goods.  York  Co.  v.  Cen- 
tral R.  R.,  3  Wall.  112;  Judson  v.  W.  R.  R.  Co.,  6  Allen  (Mass.) 
489,  83  Am.  D.  646;  Dorr  v.  N.  J.  Steam  Nav.  Co.,  11  N.  Y. 
485,  62  Am.  D.  125 ;  2  Redfield  on  Railways,  93 ;  2  Parsons  on 
Contracts,  233-237,  notes  and  cases  cited. 

Wliile  there  is  some  conflict  of  opinion  among  courts  and  text 
writers  as  to  the  extent  to  which  the  carrier  may  be  permitted  to 
modify  or  limit  his  common-law  liability  as  an  insurer,  we  think 
the  better  and  wiser  opinion  is,  that  he  shall  not  be  permitted  to 
exonerate  himself  from  liability  for  his  own  negligence,  or  the 
negligence  of  the  agents  whom  he  employs  to  perform  the  trans- 
portation. The  undertaking  is  to  carry  the  goods;  and  to  re- 
lieve the  carrier  from  liability  for  loss  or  damage  arising  from 
negligence  in  performing  his  contract  is  to  ignore  the  contract 
itself.  It  is  to  say  that  he  shall  not  be  liable  for  neglecting  to  do 
that  which  he  agreed  to  do,  for  which  alone  the  goods  were  de- 
livered to  him,  and  for  w^hich  alone  he  has  received,  or  is  to 
receive,  compensation.  This  construction  would  not  only  be 
repugnant  to  the  contract,  but  it  would  be  contrary  to  the  whole 
spirit  and  policy  of  our  laws,  which  make  a  person  who  under- 
takes to  do  a  particular  thing  answerable  in  damages  if,  through 
his  own  fault  or  negligence,  he  fails  to  do  it,  or  does  it  im- 
properly. York  Co.  V.  Central  R.  R.,  3  Wall.  112;  Laing  v. 
Colder,  8  Pa.  St.  479,  49  Am.  D.  533;  New  Jersey  Steam 
Nav.  Co.  V.  Merchants'  Bank,  6  How.  382;  2  Redfield  on  Rail- 
ways, 98-108;  Wyld  v.  Pickford,  8  Mees.  &  Wels.  443;  2  Par- 
sons on  Contracts,  247,  note ;  Sager  v.  Portsmouth  R.  R.  Co.,  31 
Me.  228 ;  Farnham  v.  R.  R.  Co.,  55  Penn.  St.  53 ;  Angell  on  Car- 
riers, §§  265,  267.  j^nd  he  is  responsible,  notwithstanding  the 
special  agreement,  for  ordinary  neglect;  that  is  to  say,  for  the 
want  of  ordinary  diligence.  Wyld  v.  Pickford,  supra;  Angell 
on  Carriers,  §§  54,  268;  2  Parsons  on  Contracts  (5th  ed.),  243, 
note. 

The  special  agreement  may  be  in  the  form  of  a  special  ac- 
ceptance of  the  goods  by  the  carrier,  as  by  a  unilateral  bill  of 
lading,  or  receipt.  Dorr  v.  N.  J.  Steam  Nav.  Co.,  11  N.  Y.  485, 
62  Am.  D.  125 ;  Boorman  v.  Am.  Express  Co.,  21  Wis.  152 ;  2 
Redfield  on  Railways,  28 ;  Prentice  v.  Decker,  49  Barb.  30 ;  Farn- 
ham V.  R.  R.  Co.,  55  Penn.  St.  53;  Angell  on  Carriers  §§  54,  220. 

But  to  bind  the  shipper  by  the  terms  of  the  special  accept- 
ance, he  must  expressly  assent  to  it,  or  it  must  be  brought 
home  to  him  under  circumstances  from  which  his  assent  is  to  be 
implied.  Judson  v.  W.  R.  R.  Co.,  6  Allen  (Mass.)  489,  83  Am. 
D.  646 ;  New  Jersey  Steam  Nav.  Co.  v.  Merchants'  Bank,  6  How., 
supra;  2  Redfield  on  Railways,  22,  93. 

231 


§  66  OF  COMMON  CAEEIEES  OF  GOODS. 

In  this  case  it  appears  that,  simultaneously  with  the  delivery 
of  the  goods  to  the  defendants,  the  receipt  above  recited  was 
delivered  to  the  plaintiffs'  consignors,  and  it  was  produced  in 
evidence  by  the  plaintiffs  upon  the  trial.  In  the  absence  of 
evidence  to  the  contrary,  it  is  to  be  presumed  that  the  con- 
signors were  the  plaintiff's'  agents  to  contract  for  the  transpor- 
tation of  the  goods;  and  the  delivery  of  the  receipt  to  the  con- 
signors must  be  held  to  be  equivalent  to  a  delivery  to  the  plain- 
tiff's, to  whose  possession  it  appears  to  have  come.  And  as  there 
is  nothing  tending  to  show  that  any  objection  was  made  to  the 
terms  of  the  receipt,  or  that  they  escaped  attention,  the  assent 
of  the  consignors — the  plaintiff' 's  agents,  and  of  the  plaintiffs 
throiigh  their  agents — to  such  terms  is  also  to  be  presumed. 
Gould  V.  Hill,  2  Hill,  623 ;  2  Parsons  on  Contracts,  234 ;  2  Red- 
field  on  Railways,  22,  28;  Boorman  v.  Am.  Express  Co.,  21  Wis. 
158 ;  King  V.  Woodbridge,  34  Vt.  571 ;  Shaw  v.  R.  R.  Co.,  13  Ad. 
&  El.  (N.  S.)  347;  Palmer  v.  Grand  Junction  R.  W.  Co.,  4  M.  & 
W.  749 ;  Dorr  v.  N.  J.  Steam  Nav.  Co.,  1  Kern.  491,  62  Am.  D. 
125.  We  are  not,  however,  to  be  understood  as  determining 
that  the  circumstances  under  which  receipts  of  this  character 
are  delivered  may  not  sometimes  be  such  as  to  repel  any  pre- 
sumption of  assent  to  their  terms  arising  from  the  simple  fact 
of  taking  such  receipts.  And  this  brings  us  to  the  most  difficult 
question  in  the  case,  viz. :  wdiat  is  the  fair  construction  of  the 
receipt  ? 

The  defendants  style  themselves  "express  forwarders,"  and 
they  agree  to  "forward"  the  goods.  But  this  language  does 
not  necessarily  give  them  the  character  of  simple  forwarders, 
nor  prevent  them  from  being  treated  as  common  carriers.  Buck- 
land  V.  Adams  Express  Co.,  supra;  Read  v.  Spaulding,  5  Bosw. 
404. 

Then  they  agree  to  forward  "only  perils  of  navigation  and 
transportation  excepted";  but  while  this  exception  embraces 
more  than  the  "act  of  God,"  it  goes  no  further  than  to  exempt 
the  carrier  from  liability  for  such  perils  as  could  not  be  fore- 
seen or  avoided  in  the  exercise  of  care  and  prudence.  The  ex- 
ception does  not  excuse  the  carrier  for  negligently  running  into 
perils  of  the  kind  mentioned.  The  proper  construction  is  anal- 
ogous to  that  which  is  put  upon  the  words  "perils  of  the  sea," 
or  "dangers  of  the  lake,"  in  bills  of  lading.  Fairchild  v.  Slo- 
cum,  19  Wend.  332;  S.  C,  7  Hill  292;  Wliitesides  v.  Thurlkill, 
12  Smedes  &  Marsh,  599 ;  Hays  v.  Kennedy,  41  Penn.  St.  378 ; 
Edwards  on  Bailments,  492-496,  and  cases  cited;  Angell  on  Car- 
riers, §§  166-174.  While,  then,  it  would  seem  very  proper  to  hold 
that  a  snag  in  one  of  our  western  rivers  is  a  peril  of  navigation, 

232 


CHEISTENSON  v.  AMERICAN  EXPRESS  CO.  §  66 

as  appears  to  have  been  done  in  Tennessee  (see  cases  cited  in 
Edwards  on  Bailments,  492),  if  a  vessel  is  wrecked  upon  one 
through  the  negligence  of  the  carrier,  or  of  those  whom  he  em- 
ploys, as  the  referee  finds  in  the  case  at  bar,  the  carrier  is  not 
absolved.  Under  such  circumstances  the  loss  is  properly  attrib- 
uted to  the  agency  of  man,  not  to  the  peril  of  navigation.  Hav- 
ing undertaken  to  carry  the  goods,  the  carrier  shall  not  be  heard 
to  set  up  his  own  negligence  to  excuse  him  from  responsibility. 

The  receipt  goes  on  to  say:  "And  it  is  hereby  expressly 
agreed,  and  is  part  of  the  consideration  of  this  contract,  that 
the  American  Express  Company  are  not  to  be  held  liable  for 
any  loss  or  damage,  except  as  forwarders  only."  By  this  clause 
it  is  contended  that  the  responsibility  of  the  defendants  is  lim- 
ited to  that  of  forwarders,  pure  and  simple;  that  pro  hac  vice 
they  are  forwarders  to  all  intents  and  purposes.  Now  a  mere 
forwarder  is  absolved  from  liability  upon  showing  that  he  used 
ordinary  diligence  in  sending  on  the  goods,  by  careful,  suitable 
and  responsible  carriers.  Edwards  on  Bailments,  293;  Roberts 
V.  Turner,  12  Johns  (N.  Y.)  233,  7  Am.  D.  311;  Brown  v.  Den- 
nison,  2  Wend.  594;  Johnson  v.  N.  Y.  Cent.  R.  R.  Co.,  33  N.  Y. 
610,  88  Am.  D.  416.  And  the  defendants  insist  that  the  boat, 
by  the  sinking  of  which  the  loss  in  this  case  was  occasioned, 
being  staunch  and  strong,  properly  manned  and  equipped,  and 
run  by  a  responsible  company,  they,  the  defendants,  have  done 
all  that  was  required  of  them,  and  are  therefore  not  liable.  But 
looking  at  the  whole  scope  of  the  receipt  and  at  the  mode  in 
which  the  defendants  transact  their  business,  we  think  the  con- 
struction contended  for  by  the  defendants  cannot  be  allowed. 
The  defendants  do  not  agree  to  simply  forward  the  goods  as 
mere  forwarders  do,  by  delivering  them  to  a  carrier.  In  such 
cases,  if  the  forwarder  has  exercised  due  diligence  in  selecting 
the  carrier  (when  no  particular  carrier  is  designated  by  the 
owner  of  the  goods),  his  duty  is  discharged;  his  connection  with 
and  responsibility  for  the  goods  cease ;  he  has  no  interest  in  the 
freight,  nor  any  thing  to  do  with  their  ultimate  delivery  to  the 
consignee  at  the  point  of  destination.  But  in  this  case  the  de- 
fendants not  only  agree  to  forward  the  goods,  but  to  forward 
them  to  their  ovvti  agent.  As  the  defendants  state  in  their 
answer,  such  agent  is,  according  to  their  usual  course  of  busi- 
ness, to  deliver  the  goods  to  the  owner  personally,  and  he  receives 
the  entire  charges. 

A  messenger  in  the  employ  of  the  defendants  accompanies  the 
goods  as  they  are  being  transported,  to  take  general  charge  of 
the  same  and  attend  to  their  transhipment  and  delivery  to  the 
proper  local  agent.     The  defendants  are  not  simply  agents  for 

233 


§  66  OF  COMMON  CAKEIEKS  OF  GOODS. 

the  shipper  to  contract  for  the  transportation  of  the  goods.  There 
is  no  contract  between  the  owner  of  the  goods  and  the  owners  of 
the  vehicles  or  vessels  which  the  defendants  employ  in  conduct- 
ing their  business.  The  goods  are  delivered  in  the  first  in- 
stance to  the  defendants;  the  defendants,  through  their  messen- 
ger, have  charge  of  them  during  their  transmission;  the  de- 
fendants employ  the  vehicles  and  vessels  used  in  transportation 
for  themselves,  not  for  the  shipper ;  the  goods,  when  they  reach 
the  point  of  destination,  are  passed  over  by  the  messenger  to 
the  defendants'  local  agent,  and  by  him  delivered  to  the  con- 
signee. As  remarked  in  a  former  part  of  this  opinion,  the  de- 
fendants must,  under  this  state  of  facts,  be  regarded  as  common 
carriers.  Their  contract  is  to  carry  the  goods,  and  having  en- 
tered into  this  contract  they  are  not  to  be  permitted  to  say  that 
they  shall  not  be  responsible  for  the  negligence  of  themselves  or 
of  the  agencies  employed  by  them  in  its  performance,  though 
they  may,  by  special  agreement,  modify  and  limit  their  common- 
law  liability  as  insurers  of  the  goods. 

From  the  very  nature  of  their  business,  and  of  the  service 
which  they  undertake  to  render  to  the  plaintiffs,  the  rlpfendants 
are  not  forwarders,  but  carriers,  and  when  they  assume  to  re- 
strict their  liability  to  that  of  forwarders,  it  is  as  much  as  to  say 
that  they  will  not  be  responsible  to  the  owners  of  the  goods  ac- 
cording to  their  true  character  and  to  the  actual  relation  which 
they  sustain  to  them.  In  our  opinion,  then,  the  effect  claimed 
for  this  clause  of  the  receipt  by  the  defendants  is  inconsistent 
with,  and  repugnant  to,  the  scope  and  intent  of  the  receipt, 
viewed  as  a  whole,  and  in  connection  with  the  facts  showing  the 
defendant's  real  character  and  mode  of  doing  business.  And 
although  the  defendants'  liability  at  common  law,  as  common 
carriers  and  insurers  of  the  goods,  is  modified  by  other  provi- 
sions of  the  receipt,  as  well  as  possibly  in  some  respects  by  the 
clause  under  consideration,  it  is  not  so  far  modified  by  either 
as  to  exempt  the  defendants  from  responsibility  for  their  own 
negligence,  or  the  negligence  of  the  agents  employed  by  them  in 
the  transmission  of  the  goods.  In  fact,  so  far  as  the  simple  duty 
of  carrying  is  concerned,  this  clause  would  seem  to  have  no  bear- 
ing or  application.  In  Hooper  v.  Wells,  Fargo  &  Co.,  27  Cal.  11 
75  Am.  D.  211,  M'here  an  express  receipt  contained  a  stipulation 
that  the  express  company  were  "not  to  be  responsible  except  as 
forwarders,"  it  was  held  to  mean  that  the  "liability"  shall  be 
governed  by  the  principles  of  law  applicable  to  forwarders; 
that  is,  that  they  shall  only  be  liable  for  losses  arising  from  a 
want  of  ordinary  care  on  the  part  of  themselves  and  in  the 
agencies  made  use  of  by  them  in  the  exercise  of  their  ordinary, 

234 


CHEISTENSON  v.  AMEEICAN  EXPRESS  CO.  §  G6 

business  of  carriers.  But  though  the  view  thus  taken  by  the  su- 
preme court  of  California  would,  in  the  case  at  bar,  lead  to  the 
same  conclusion  to  which  we  arrive,  the  construction  strikes  us 
to  be  somewhat  forced.  We  think  the  view  which  we  take  is  the 
more  rational,  and  it  is  substantially  the  same  sugrgested  by  Mr. 
Redfield  in  his  note  to  the  case  cited.  2  Redfield  on  Railways 
(4th  ed.),  25. 

In  the  case  at  bar,  then,  the  receipt,  and,  for  the  purposes  of 
this  action,  the  value  of  the  goods,  and  the  loss  by  the  sinking  of 
the  boat  being  undisputed,  and  the  fact  being  found  by  the  ref- 
eree that  the  loss  was  occasioned  by  the  negligence  of  those  who 
were  running  the  boat,  judgment  was  properly  rendered  against 
the  defendants.  We  have  not  adverted  to  the  finding  that  the 
express  messenger  was  also  guilty  of  negligence,  because  that 
finding  is  not  necessary  to  support  the  judgment,  as  well  as  be- 
cause we  have  great  doubts  whether  it  is  supported  by  the  evi- 
dence in  the  case. 

Judgment  affirmed.         •  ll__i_r 


235 


CHAPTER  XI. 

OF  THE  RIGHTS  AND  DUTIES   OF   THE   COMMON    CARRIER. 

^  67.     GALENA  AND  CHICAGO  UNION  RAILROAD  CO.  V. 

RAE. 

18  III.  488;  68  Am.  D.  574.     1857. 

Action  on  the  case  for  failure  to  supply  grain  cars.  Judg- 
ment for  plaintiff. 

By  Court,  Skinner,  J.  This  was  an  action  on  the  case  against 
the  railroad  company  as  common  carriers,  for  refusal  to  carry, 
and  for  delay  in  carrying,  the  grain  of  the  plaintiff  below  from 
Rockford  to  Chicago.  The  cause  was  tried  by  jury,  who  re- 
turned a  verdict  of  four  thousand  nine  hundred  and  fifty  dollars 
against  the  company,  upon  which  the  court  rendered  judgment, 
refusing  to  grant  a  new  trial.  The  evidence  is  very  voluminous, 
and  in  the  opinion  of  the  court  is  insufficient  to  sustain  a  verdict 
for  the  amount  found. 

The  instructions  in  the  record,  and  involved  in  the  assign- 
ments of  error,  are  seventeen  in  number,  and  a  critical  exami- 
nation of  each,  in  our  opinion,  would  embrace  almost  the  entire 
law  relating  to  common  carriers.  This  court  is  under  no  obli- 
gation to  write  a  treatise  upon  this  branch  of  the  law,  nor  was 
the  court  below  bound  to  act  upon  instructions  not  necessary  to 
enlighten  the  jury  of  the  law  arising  upon  the  evidence  properly 
before  them.  As  the  cause  will  be  again  for  trial,  we  will  state 
those  rules  of  law  in  controversy  which  are  material  to  the  case 
made  by  the  record. 

The  evidence  shows  that  the  company  had  the  necessary  means 
and  facilities  for  transporting  with  dispatch  the  amount  of 
freight  ordinarily  for  carriage,  and  that  at  the  period  when 
the  wrong  is  charged  to  have  been  committed  there  was  an  un- 
usual and  extraordinary  quantity  of  grain  for  shipment,  owing 
to  the  great  harvest  of  that  year  and  want  of  facilities  for  stor- 
age in  the  country.  In  this  respect  the  company  was  not  in 
default  in  regard  to  that  duty  it  owed  the  public  of  affording 
reasonable  facilities  for  the  transportation  of  freight.  Neither 
the  common  law  nor  the  statute  requires  an}i;hing  more  than 

236 


GALENA  AND  CHICAGO  UNION  K.  R.  CO.  v.  RAE.        §  67 

that  the  company  shall  furnish  reasonable  and  ordinary  facili- 
ties of  transportation — such  as  are  adapted  to  its  mode  of  con- 
veyance and  will  meet  the  ordinary  demands  of  the  public.  The 
company  was  not  bound  to  provide  in  advance  for  or  anticipate 
extraordinary  occasions,  or  an  unusual  influx  of  freight  to  the 
road :  Wibert  v.  New  York  etc.  R.  R.  Co.  19  Barb.  36 ;  Stats. 
1856,  p.  1070. 

Corporations  for  carrying  are  created  for  the  public  good,  and 
powers  and  privileges  are  given  them  in  consideration  of  the 
benefits  they  are  expected  to  confer  upon  the  public.  Their  ob- 
ligations to  the  public  require  the  use  of  their  facilities  fairly, 
and  in  such  manner  as  is  best  calculated,  in  the  prosecution  of 
their  business,  to  afford  the  largest  public  benefit.  An  honest 
and  fair  endeavor  in  the  course  of  their  legitimate  enterprise  to 
accomplish  this  is  all  that  can  be  legally  required  of  them. 

If  by  reason  of  the  condition  of  the  country  and  the  peculiar 
occasion — an  unusual  quantity  of  grain  on  the  line  for  shipment, 
a  want  of  means  in  the  country  for  storing  it,  or  other  pressing 
cause — the  company  took  grain  from  wagons,  or  from  boats 
from  Oregon,  while  grain  remained  in  private  warehouses  for 
shipment,  and  in  so  doing  acted  in  good  faith,  intending  to  af- 
ford the  largest  public  accommodation,  and  not  from  motives  of 
partiality  or  oppression,  it  has  not  thereby  incurred  legal  liabil- 
ity. If  the  plaintiff  below  has,  in  consequence  of  an  extraor- 
dinary occasion,  or  of  the  public  necessities,  and  not  from  the 
wrong  of  the  company,  sustained  a  loss,  he  must  be  content  that 
his  loss  is  suffered  for  the  public  good. 

The  company  is  liable  for  the  frauds  and  negligence  of  its 
agents  and  employees,  in  the  course  of  their  employment;  and 
if  those  in  charge  of  the  company's  cars,  whose  duty  it  was  to 
assign  or  give  them  out  to  be  loaded  with  grain,  through  brib- 
ery or  from  motives  of  partiality  or  oppression,  gave  them  to 
persons,  by  the  course  and  usage  of  the  company,  or  in  fact,  not 
rightfully  entitled  to  them,  and  thereby  deprived  the  plaintiff 
below  of  the  facilities  of  shipping  his  grain  he  should  have  had, 
he  is  entitled  to  such  damages  as  he  may  have  sustained  there- 
from :  Middleton  v.  Fowler,  1  Salk.  282 ;  Boson  v.  Sandford,  2 
Id.  440;  Story  on  Agency,  §§  139,  453;  Parsons  on  Cont.,  62,  63. 

The  company  was  bound  to  use  due  diligence  in  carrying  the 
grain  taken  to  the  place  of  destination ;  and  if  for  want  of  such 
diligence  the  grain  taken  was  not  carried  and  delivered  at  Chi- 
cago, in  the  usual  and  reasonable  time,  the  company  is  liable  for 
the  damages  thereby  sustained;  and  if  unreasonable  delay  is 
shown,  the  company,  to  discharge  itself,  must  show  a  reasonable 
excuse,  arising  from  accident,  or  other  cause,  not  the  conse- 

237 


§  67  EIGHTS  AND  DUTIES  OF  COMMON  CAREIEE. 

quence  of  negligence :   Parsons  v.  Hardy,  14  Wend.  216,  38  Am. 
Dec.  521 ;  Dows  v.  Cobb,  12  Barb.  310 ;  Story  on  Bailm.,  §  509. 

The  company  was  bound  to  receive  the  grain  of  the  plaintiff 
according  to  its  custom  and  usage ;  and  if  that  usage  was  to  run 
their  cars  upon  a  side-track  to  private  warehouses,  and  there  re- 
ceive grain  in  the  cars,  a  tender  accordingly,  or  notice  and  read- 
iness so  to  deliver,  would  impose  obligations  on  the  company  to 
take  and  carry  the  grain.  Having  adopted  this  mode,  the  com- 
pany could  not  capriciously  require  that  the  grain  should  be 
delivered  in  a  different  manner  or  at  a  different  place:  Mer- 
riam  v.  Hartford  etc.  R.  R.  Co.,  20  Conn.  354,  52  Am.  Dec.  344; 
Fulton  Ins.  Co.  v.  IMilner,  23  Ala.  420 ;  Dixon  v.  Dunham,  14  111. 
324.  It  was  incumbent  on  the  plaintiff  below  to  prove  a  tender 
of  the  customary  price  of  carrying  the  grain  offered  to  be 
shipped,  or  a  readiness  and  willingness  to  pay  according  to  the 
course  and  usage  of  the  company  in  such  case.  The  company 
should  have  a  lien  upon  the  grain  carried  for  reasonable  charges, 
and  could  withhold  the  same  from  delivery  until  paid.  A  readi- 
ness and  willingness  to  pay  the  reasonable  charges  for  carrying, 
according  to  the  usage  of  the  company,  would  be  sufficient  to 
impose  the  obligation  to  carry,  unless  the  company  required  pre- 
payment, and  then  the  plaintiff  would  be  required  to  offer  and 
be  ready  to  pay  accordingly.  Slight  evidence,  however,  of  readi- 
ness and  willingness  to  pay  would  be  sufficient,  and  they  may  be 
presumed  or  inferred  from  surrounding  circumstances  tending 
to  raise  such  presumption:  Story  on  Bailm.,  §  508;  Angell  & 
Ames  on  Carriers,  §  124;  Parsons  on  Cont.,  §  548;  Hough  v. 
Rawson,  17  111.  588. 

The  measure  of  damages  in  this  case  we  regard  as  settled  by 
the  case  of  Sangamon  etc.  R.  R.  Co.  v.  Henry,  14  111.  156.  If 
the  grain  shipped  was  not  delivered  in  Chicago  in  reasonable 
time  for  any  fault  of  the  company,  the  measure  of  damages  is 
the  difference  in  the  value  of  the  grain  at  Chicago,  when  it  was 
in  fact  delivered,  and  when  it  should  have  been,  in  the  usual 
course  of  transportation,  delivered  there.  If  the  company 
wrongfully  refused  to  carry  the  grain,  the  measure  of  damages 
is  the  difference  between  the  value  at  Chicago  when,  if  carried, 
it  shoukVliave  reached  there,  and  its  value  at  such  time  at  the 
place  whence  it  should  have  been  taken,  including  the  necessary 
expense  of  storage  and  deterioration,  and  the  like,  accruing  by 
reason  of  its  detention,  and  deducting  the  reasonable  expense  of 
transportation :    Green  v.  Mann,  11  Id.  613. 

There  is  no  proof  in  the  case  that  the  grain  was  lost  or  dam- 
aged by  being  detained  at  Roekford,  and  the  jury  probably  based 
their  verdict  upon  the  hypothesis  that  the  company  was  bound 

238 


ILL.  CEN.  E.  R.  CO.  v.  FEANKENBERG.  §§  67,  6S 

to  be  ready  at  all  events  to  carry  whatever  amount  of  freight 
was  for  transportation,  and  when  required. 
Judgment  reversed  and  cause  remanded. 


68.     ILLINOIS  CENTRAL  RAILROAD  CO.  V.  FRANKEN- 

BERG. 

54  III.  88;  5  Am.  B.  92.    1870. 

Assumpsit  against  the  railroad  company  for  the  value  of  cab- 
bage spoiled  through  delay  by  a  connecting  line.  The  bill  of 
lading  provided  that  for  loss  or  damage  the  remedy  should  be 
against  that  carrier  in  whose  custody  the  packages  might  be  at 
the  time  of  the  injury.  Defendant  line  delivered  the  cabbage  in 
good  condition  to  the  connecting  line.     Judgment  for  plaintiff. 

Breese,  Ch.  J.  The  question  presented  by  this  record  is  one 
of  great  importance  to  the  public,  and  to  the  railroad  interests  of 
the  country,  and  has  received  our  most  careful  consideration. 
It  is  a  question  on  which  the  courts  of  this  country  are  not 
in  harmony  with  themselves,  nor  with  those  of  England,  to 
whose  decisions  we  are  accustomed  to  refer  as  evidence  of  what 
the  common-law  is,  on  any  subject  which  has  engaged  their  de- 
liberations. 

The  question  is,  as  to  the  extent  of  the  liability  qi  a  railroad 
company  as  common  carriers  of  goods  and  property. 

While  there  is  no  difficulty  in  defining,  in  general  terms,  when 
the  liability  of  a  common  carrier  begins,  the  courts  of  this 
country  are  not  agreed  as  to  the  point  when  it  terminates. 

A  common  carrier  is  defined  to  be  one  who  undertakes,  for 
hire,  to  transport  the  goods  of  such  as  choose  to  employ  him, 
from  place  to  place.  Railway  companies  are  under  obligations  to 
receive  and  transport  all  goods  which  may  be  offered  to  them 
for  such  purpose,  and  without  delay.  They  cannot  lie  by,  as  the 
wagoners  in  early  times  were  accustomed  to  do,  for  a  rise  in 
the  price  of  freights.  They  are  regarded  by  all  courts  as  com- 
mon carriers,  resting  vmder  a  duty  to  transport  such  articles  as 
may  be  delivered  to  them  in  the  course  of  their  business,  and 
their  liability  commences  when  the  goods  are  delivered  to  their 
agent  authorized  to  receive  them.  They  may  demand  the  freight 
money  in  advance,  and  if  not  paid,  may  refuse  to  carry  the 
goods,  but  when  they  are  received  they  are  at  the  risk  of  the 
carrier,  and  from  which  time  he  is  regarded  as  an  insurer,  and 
held  to  the  most  stringent  responsibilities,  from  which  he  can 
only  be  relieved  by  the  operation  of  one  of  two  causes,  the  act 

239 


§  68  EIGHTS  AND  DUTIES  OF  COMMON  CAEEIEE. 

of  God  or  the  public  enemy.  Public  policy  has  always  de- 
manded this  rule,  inasmuch  as  the  goods  are  entirely  in  the 
power  of  the  carrier,  and  it  being  so  easy  for  him  to  conceal 
his  fraud  or  misconduct,  and  so  difficult  for  the  owner  to  prove 
it,  that  the  law  does  not  permit  the  inquiry,  but  supplies  the 
want  of  proof  by  a  conclusive  presumption.  Porter  v.  Chicago 
and  Rock  Island  R.  R.  Co.,  20  111.  407,  71  Am.  D.  286 ;  Baldwin 
V.  American  Express  Co.,  23  111.  197,  74  Am.  D.  190. 

The  liability  of  the  carrier  commencing  with  the  receipt  of 
the  goods,  it  necessarily  continues  until  they  are  delivered  by 
him  at  their  place  of  destination,  where  the  owner  or  consignee 
'  is  bound  to  be  present  and  receive  them  and  pay  the  freight 
for  them,  if  not  previously  paid.  If  he  be  not  present  to  receive 
the  goods,  they  can  be  placed  in  a  safe  and  sufficient  warehouse, 
when  the  liability  of  the  carrier  ceases  and  that  of  warehouse- 
man begins. 

The  important  question  now  arises,  is  he  thus  bound  to  carry 
and  deliver  to  a  point  or  place  not  on  his  route  ? 

This  is  a  question  not  settled  by  the  courts  of  this  country, 
though  the  received  doctrine  may  be  said  to  be,  that  the  carrier 
is  not  responsible  beyond  his  own  route,  except  upon  his  special 
undertaking  so  to  be  liable. 

By  the  law  of  common  carriers,  their  liability  was  fixed  on  the 
receipt  of  the  goods  to  be  carried.  They  are  insurers  of  the 
goods,  and  if  not  delivered  at  their  place  of  destination,  they  are 
accountable  for  them,  and  when  called  upon  to  account  for  them, 
the  onus  of  proof  is  upon  them  and  they  are  chargeable  with 
their  value,  unless  the  loss  was  caused  by  a  force  superior  to 
human  agency,  which  no  foresight  could  have  guarded  against, 
or  by  the  public  enemy. 

This  is  the  extent  of  the  liability  of  common  carriers  by  the 
common-law.  The  receipt  of  goods  by  them  is  all  that  is  neces- 
sary to  fix  this  liability,  so  that,  if  a  parcel  or  package  be  de- 
livered to  a  railroad  at  Chicago,  marked  for  Louisville,  Ken- 
tucky, or  any  other  place  off  their  route,  and  they  receive  it  to 
carry,  they  are  bound,  by  this  rule  of  the  common-law,  if  the 
parcel  or  package  be  lost,  to  account  to  the  owner  for  its  value. 
The  contract  of  the  shipper  is  with  the  carrier  in  whose  custody 
he  placed  the  goods. 

A  responsibility  so  vast  being  cast  upon  carriers  by  the  com- 
mon-law, it  soon  became  a  question  how  they  could  remove  or 
lessen  it.  A  resort  was  had  to  a  general  notice,  which  was  held 
by  this  court  and  other  courts  to  be  insufficient.  Western  Trans- 
portation Co.  V.  Newhall,  24  111.  466,  76  Am.  D.  760.  But  it 
was  held  by  this  court,  in  the  case  of  the  Illinois  Cent.  R.  R.  Co. 

240 


ILL.  CEN.  K.  E.  CO.  v.  FKANKENBEEG.  §  68 

V.  Morrison  ct  al,  19  id.  136,  that  such  carriers  may  relieve 
themselves  from  their  general  liability  by  special  contract.  In 
that  case,  Morrison,  by  his  writing,  under  seal,  in  consideration 
of  a  reduction  of  the  freight  charges  upon  a  lot  of  cattle,  as- 
sumed the  risk  of  transportation,  and  released  the  company 
from  all  claims  which  might  arise  from  damage  or  injury  to  the 
stock  while  in  the  cars,  or  for  delay  in  its  carriage,  or  for  es- 
cape from  the  cars,  and,  generally,  from  all  claims  except  such 
as  might  arise  from  the  gross  negligence  or  default  of  the 
agents  or  officers  of  the  company. 

We  have  examined  all  the  cases  cited  upon  both  sides  of  this 
question,  and  pondered  them,  anxiously  desiring  to  recognize 
a  rule  which,  while  it  shall  not  perplex  and  injure  the  commercial 
interests  of  the  country,  shall,  at  the  same  time,  protect  the  car- 
rier's interest,  or,  at  least,  be  of  so  much  service  to  it  that  the 
proprietors  of  that  interest  may  know  and  understand  the  full 
extent  of  their  obligations  to  the  public. 

So  long  ago  as  1860,  this  court,  in  the  case  of  this  same  com- 
pany against  Copeland,  24  111.  332,  76  Am.  D.  749,  expressed  a 
decided  partiality  for  the  rule  in  Muschamp's  case,  8  Mees.  & 
Wels.  421,  so  much  relied  on  by  the  appellee,  and  in  which  case 
all  the  authorities,  English  and  American,  were  fully  examined, 
and  we  said,  though  this  point  was  not  in  the  case,  we  were 
inclined  to  yield  to  the  force  of  the  reasoning  of  the  English 
courts,  on  principles  of  public  convenience,  if  no  other,  and  to 
hold,  when  a  carrier  receives  goods  to  carry,  marked  to  a  par- 
ticular place,  he  is  prima  facie  bound  to  carry  to,  and  deliver 
at  that  place.  By  accepting  the  goods  so  marked,  he  impliedly 
agrees  so  to  do,  and  he  ought  to  be  answerable  for  the  loss. 

Again,  in  the  case  of  the  same  company  against  Johnson,  34 
id.  389,  there  was  an  express  understanding  to  transport  the 
goods  to  Wheeling;  but  the  court,  referring  to  Copeland 's  case, 
supra,  considered  that  case  as  holding  that  a  carrier  who  re- 
ceives goods  to  carry,  marked  to  a  particular  place,  was  bound 
to  carry  to,  and  deliver  at  that  place ;  that  it  was  an  agreement 
implied  from  the  mark  or  direction  on  the  goods,  and  accepting 
them  so  marked,  that  the  liability  arose. 

Now,  on  the  point  of  public  convenience,  which  consideration 
had  great  weight  with  us  in  determining  which  rule  should  be 
adopted,  it  seems  to  us  that  consignors  of  the  productions  of  our 
country,  or  other  property,  by  railroad,  should  not  be  required, 
in  case  of  loss  or  damage,  to  look  for  remuneration  to  any  other 
party  than  the  one  to  w^hich  they  delivered  the  goods.  It  would 
be  a  great  hardship,  indeed,  to  compel  the  consignor  of  a  few 
barrels  of  flour,  delivered  to  a  railroad  in  this  State,  marked  to 
16  241 


§  6S  EIGHTS  AND  DUTIES  OF  COMMON  CAEEIEE. 

New  York  city,  and  which  are  lost  in  the  transit,  to  go  to  New 
York,  or  to  the  intermediate  lines  of  road,  and  spend  days  and 
weeks,  perhaps,  in  endeavors  to  find  out  on  what  particular  road 
the  loss  happened,  and,  having  ascertained  it,  in  the  event  of  a 
refusal  to  adjust  the  loss,  to  bring  a  suit  in  the  court  of  New 
York  for  his  damages.  Far  more  just  would  it  be  to  hold  the 
company  who  received  the  goods  in  the  first  instance,  as  the 
responsible  party  and  the  intermediate  roads  its  agents  to 
carry  and  deliver;  and  it  is  the  most  reasonable  and  just,  for  all 
railroads  have  facilities,  not  possessed  by  a  consignor,  of  trac- 
ing losses  of  property  conveyed  by  them,  and  all  have,  or  can 
have,  running  connections  with  each  other.  Above  all,  when  it 
is  considered  the  receiving  company  can,  at  the  outset,  relieve 
itself  from  its  common-law  liability  by  a  special  and  definite 
agreement,  such  a  rule  cannot  prejudice  them.  The  rule  being 
known,  all  parties  can  readily  accommodate  their  business  to  it, 
and  no  inconvenience  can  result  to  any  one  from  its  operation. 

In  the  case  of  the  Illinois  Central  R.  R.  Co.  v.  Morrison,  19 
111.  136,  there  was  a  formal  stipulation  under  hand  and  seal, 
by  which  the  consignor,  for  a  valuable  consideration,  agreed  to 
release  the  company  from  their  common-law  liability  as  car- 
riers. 

In  Adams  Express  Co.  v.  Haynes,  42  id.  90,  it  was  said,  if  a 
shipper  takes  a  receipt  for  his  goods  from  the  company,  with  a 
full  knowledge  of  its  terms  and  conditions,  intending  to  assent 
to  the  restrictions  contained  in  it,  then  it  becomes  his  contract 
as  fully  as  if  he  had  signed  it. 

By  such  a  contract,  the  rights  and  duties  of  the  parties  to  it 
must  be  governed;  and  if  the  stipulations  in  it  go  to  limit  the 
common-law  liability,  and  they  plainly  appear  in  the  instru- 
ment, and  are  not  covertly  inserted  in  it,  and  are  understood  by 
the  consignor,  then  it  must  be  enforced  as  any  other  contract 
of  parties  made  in  good  faith. 

Testing  this  case  by  these  considerations,  the  receipt  or  bill 
of  lading  executed  by  appellants  and  accepted  by  the  consignors, 
reciting,  as  it  does,  that  the  goods  in  question  were  consigned 
to  Pana,  and  charges  paid  to  that  point,  and  that  appellants 
should  not  be  liable  for  loss  or  damage  save  on  their  own  road, 
amounts  to  a  special  contract,  relieving  the  company  from  their 
common-law  duty. 

It  is  a  question  for  the  jury  to  determine,  whether  the  terms 
of  the  receipt  were  understood  by  the  consignors  and  assented 
to  by  them.    If  they  were,  they  are  bound  by  them. 

The  fact  that  the  charges  were  guaranteed  from  Pana,  was  not 
for  the  benefit  of  appellants,  but  for  the  benefit  of  the  connecting 

242 


LOUISVILLE,  ETC.,  RAILROAD  CO.  v.  WILSON.  §§  68,  69 

road,  whose  usage  was  to  decline  the  receipt  of  perishable  arti- 
cles, as  these  were,  unless  the  charges  were  guaranteed. 

We  think  justice  would  be  promoted  by  sending  this  cause 
back  for  trial,  in  the  light  of  the  views  here^presented,  and  of  the 
rule  we  think  necessary  to  be  established  for  the  government 
of  all  such  transactions,  and  for  that  purpose  reverse  the  judg- 
ment and  remand  the  cause. 

Lawrence,  McAlister  and  Thornton  dissented  from  this 
opinion. 

Judgment  reversed. 


69.    LOUISVILLE,  EVANSVILLE  &  ST.  LOUIS  RAILROAD 
CO.  V.  WILSON. 

119  Ind.  352,  21  N.  E.  R.  341.     1889. 

Action  to  recover  $2,700  excess  freight  on  lumber.  Freight 
was  charged  according  to  a  public  circular,  but  plaintiffs  claimed 
an  oral  agreement  with  the  general  freight  agent  to  continue  to 
carry  for  plaintiffs  at  a  former  and  lower  rate. 

Mitchell,  J.  (After  stating  the  facts.)  It  is  to  be  observed 
that  the  complaint  was  framed  and  that  the  action  proceeded  to 
judgment  upon  the  theory  that  the  ties  were  shipped  under  an 
oral  agreement,  by  the  terms  of  which  the  railroad  company 
bound  itself  to  carry  the  plaintiff's  freight  at  the  rate  of  $14 
per  car-load.  The  action  is  to  recover  for  overcharges  made  in 
disregard  of  this  agreement.  The  proof,  however,  shows,  with- 
out any  contradiction  whatever,  that  the  shipments  were  made 
— with  possibly  some  exceptions,  in  which  cases  bills  were  de- 
livered after  the  shipments  had  been  made — pursuant  to  writ- 
ten and  printed  bills  of  lading,  signed  by  the  company's  agent 
and  delivered  to  the  shipper  before  the  transportation  began,  in 
each  instance. 

The  question  presented  at  the  threshold,  therefore,  is,  was  it 
competent  for  the  plaintiffs,  without  alleging  any  fraud,  con- 
cealment or  mistake,  to  recover  upon  an  oral  contract  made 
prior  to  the  issuing  of  the  bills  of  lading,  which  are  supposed 
to  set  forth  the  terms  and  conditions  upon  which  the  goods  were 
to  be  transported,  or  must  the  rights  of  the  parties  be  deter- 
mined by  the  express  terms  and  legal  import  of  these  instru- 
ments? A  bill  of  lading  is  twofold  in  its  character.  It  is  a  re- 
ceipt, specifying  the  quantity,  character  and  condition  of  the 
goods  received;  and  it  is  also  a  contract,  by  which  the  carrier 

243 


§  G9  EIGHTS  AND  DUTIES  OF  COMMON  CARRIEE. 

agrees  to  transport  the  goods  therein  described  to  a  place  named, 
and  there  deliver  them  to  a  designated  consignee  upon  the  terms 
and  conditions  specified  in  the  instrument.  The  Delaware,  14 
Wall.  579;  O'Brien  v.  Gilchrist,  34  Me.  554,  56  Am.  D.  676;  2 
Am.  and  Eng.  Encycl.  Law,  228;  Chandler  v.  Sprague,  5  Met. 
(Mass.)  306,  38  Am.  D.  404,  and  note;  Friedlander  v.  Texas 
&  Pac.  R.  W.  Co.,  130  U.  S.  416,  9  Sup.  Ct.  Repr.  570. 

So  far  as  a  bill  of  lading  is  in  the  nature  of  a  receipt,  or  an 
acknowledgment  of  the  quantity  and  condition  of  the  goods 
delivered,  it  may,  like  any  other  receipt,  be  explained,  varied, 
or  even  contradicted ;  but  as  a  contract,  expressing  the  terms 
and  conditions  upon  which  the  property  is  to  be  transported,  it  is 
to  be  regarded  as  merging  all  prior  and  contemporaneous  agree- 
ments of  the  parties,  and,  in  the  absence  of  fraud,  concealment 
or  mistake,  its  terms  or  legal  import,  when  free  from  ambiguity, 
cannot  be  explained  nor  added  to  by  parol.  Snow  v  Indiana  etc. 
R.  W.  Co.,  109  Ind.  422,  and  cases  cited. 

"Such  a  contract  is  to  be  construed,  like  all  other  written 
contracts,  according  to  the  legal  import  of  its  terms."  It  be- 
comes the  sole  evidence  of  the  undertaking,  and  all  antecedent 
agreements  are  extinguished  by  the  writing.  Lawson  Contracts 
of  Carriers,  §  113 ;  Collender  v.  Dinsmore,  55  N.  Y.  200,  14  Am. 
R.  224;  Southern  Ex.  Co.  v.  Dickson,  94  U.  S.  549;  Bank  of 
Kentucky  v.  Adams  Ex.  Co.,  93  U.  S.  174;  Kirkland  v.  Dins- 
more,  62  N.  Y.  171,  20  Am.  R.  475.  Thus,  in  Snow  v.  Indiana, 
etc.,  R.  W.  Co.,  supra,  the  shipper  of  a  car-load  of  horses,  who 
had  received  a  bill  of  lading  in  which  no  route  was  designated 
by  which  the  car  was  to  be  forwarded  after  leaving  the  initial 
carrier's  line,  offered  to  prove  that  a  particular  line  had  been 
agreed  upon.  It  was  held  that  the  silence  of  the  bill  of  lading  in 
the  respect  mentioned  was  the  same  in  legal  effect  as  if  a  provi- 
sion had  been  inserted  therein  authorizing  the  first  carrier  to 
select,  at  its  discretion,  any  customary  or  usual  route  which  was 
regarded  as  safe  and  responsible,  by  which  to  forward  the  car, 
and  that  the  provision  thus  imported  into  the  bill  of  lading  was 
no  more  subject  to  be  assailed  by  parol  than  was  any  of  the 
express  terms  of  the  contract.  The  cases  which  affirm  this  prin- 
ciple are  very  numerous.  They  proceed  upon  the  theory  that, 
in  the  absence  of  express  stipulation,  certain  terms  are  or  may 
be  annexed  to  e\ery  contract  by  legal  implication,  and  that  stip- 
ulations thus  imported  into  a  contract  become  as  effectually  a 
part  of  the  written  agreement  as  though  they  were  expressed 
therein  in  terms.  Long  v.  Straus,  107  Ind.  94,  6  N.  E.  R.  123, 
57  Am.  R.  87;  Hudson  Canal  Co.  v.  Pennsylvania  Coal  Co.,  8 
Wall.  276,  288 ;  Hill  v.  Syracuse,  etc.,  R.  R."  Co.,  73  N.  Y.  351, 

244 


LOUISVILLE,  ETC.,  EAILEOAD  CO.  v.  WILSON.  §  69 

29  Am.  R.  163.  Thus,  where,  in  a  written  contract  for  the  sale 
of  property,  no  time  is  fixed  for  the  payment  of  the  purchase- 
price,  the  law  implies  that  the  price  is  to  be  paid  upon  the  de- 
livery or  transfer  /of  the  property,  and  the  purchaser,  without 
alleging  fraud  or  mistake,  would  not  be  heard  to  prove  by  parol 
that  the  sale  was  made  on  credit.  An  apparent  exception  to  the 
general  rule  occurs  when  proof  of  an  agreement  collateral  to  that 
contained  in  the  bill  of  lading  is  offered.  Baltimore,  etc..  Steam- 
boat Co.  V.  Bro\^Ti,  54  Pa.  St.  77;  Lawson  Contracts  of  Car- 
riers, §  115. 

As  we  have  seen,  all  the  bills  of  lading  contain  a  stipulation 
to  the  effect  that  the  cross-ties  are  to  be  transported  over  the 
defendant's  road,  and  that  they  are  to  be  delivered  as  therein 
specified,  upon  payment  of  freight  and  charges  in  par  funds. 
In  some  of  them  the  amount  to  be  paid  is  not  fixed,  while  in 
others  the  charges  actually  collected  were  inserted  in  the  bills 
of  lading  before  they  were  delivered  to  the  plaintiffs,  and  be- 
fore the  ties  were  transported.  Surely  there  can  be  no  ground 
of  recovery  where  the  amount  actually  collected  was  stipulated 
in  the  bills  of  lading  beforehand.  Nor  was  it  competent  to  give 
evidence  of  an  oral  agreement  concerning  the  amount  of  freight 
to  be  paid,  with  a  view  of  establishing  a  right  of  recovery  in  re- 
spect to  those  bills  of  lading  in  which  the  amount  was  not  fixed 
in  express  terms.  The  bills  of  lading  must  be  regarded  as  com- 
plete contracts  into  which  all  the  oral  negotiations  of  the  pay- 
ties  are  merged,  or  they  are  entirely  without  force  or  effect  a« 
evidence  of  the  terms  and  conditions  upon  which  the  goods  wei«i 
to  be  transported.  While  it  is  true,  the  contract  of  a  commor* 
carrier  to  transport  goods  is  equally  binding  whether  it  be  by 
parol  or  in  writing  (Mobile,  etc.,  R.  W.  Co.  v.  Jurey,  111  U.  S. 
584),  no  good  reason  can  be  suggested  in  support  of  a  rule 
which  should  declare  that  part  of  the  contract  might  be  in  writ- 
ing, and  part,  covering  the  same  subject-matter,  by  parol.  Either 
the  bill  of  lading  must  be  regarded  as  the  sole  repository  of  the 
agreement  of  the  parties,  in  respect  to  the  terms  upon  which 
the  shipments  were  made,  or  it  must  be  regarded  as  a  receipt, 
and  nothing  more.  As  a  contract,  a  bill  of  lading,  like  other 
written  contracts,  is  presumed,  in  the  absence  of  imjxosition  or 
mistake,  to  embody  the  entire  agreement  of  the  parties.  Lawson 
Contracts  of  Carriers,  sections  112,  113 ;  Long  v.  New  York,  etc., 
R.  R.  Co.,  50  N.  Y.  76. 

The  bills  of  lading  involved  in  the  present  ease  cover  every 
subject  of  the  contract  of  shipment,  except  that  some  of  them 
are  silent  as  to  the  amount  of  freight  to  be  paid.  If,  in  the  ab- 
sence of  an  agreem.ent,  the  law  supplies  this  term  by  implication, 

245 


§  69  EIGHTS  AND  DUTIES  OF  COMMON  CAEEIER. 

then  the  writings  constitute  complete  contracts,  and  parol  evi- 
dence is  inadmissible  to  vary,^  control  or  contradict  tiie  terms 
therein  expressed,  or  those  which  the  law  certainly  implies. 
Indianapolis,  etc.,  R.  R.  Co.  v.  Remmy,  13  Ind.  518;  Jefferson- 
ville,  etc.,  R.  R.  Co.  v.  Worland,  50  Ind.  339 ;  Pemberton  Co.  v. 
N.  Y.  Central  R.  R.  Co.,  104  Mass.  144. 

The  law  makes  it  the  duty  of  every  common  carrier  to  receive 
and  carry  all  goods,  seasonably  offered  for  transportation,  and 
authorizes  a  reasonable  reward  to  be  charged  for  the  service. 
The  amount  to  be  paid  is,  in  a  measure,  subject  to  the  agreement 
of  the  parties;  but  when  the  amount  is  not  fixed  by  contract, 
the  law  implies  that  the  carrier  shall  have  a  reasonable  reward, 
which  is  to  be  ascertained  by  the  amount  commonly,  or  cus- 
tomarily, paid  for  other  like  services.  Johnson  v.  Pensacola, 
etc.,  R.  R.  Co.  16  Florida,  623,  26  Am.  R.  731 ;  Angell  Carriers, 
section  892 ;  Lawson  Contracts  of  Carriers,  section  125. 

Whether  a  railroad  company  may,  in  the  absence  of  legisla- 
tion, agree  upon  different  rates  of  compensation  for  similar  ser- 
vices for  different  persons,  is  a  question  we  need  not  consider 
in  the  present  case.  Fitchburg  R.  R.  Co.  v.  Gage,  12  Gray,  393 ; 
Spofford  V.  Boston,  etc.,  R.  R.  Co.,  128  Mass.  326;  Ragan  v. 
Aiken,  9  Lea.  609,  42  Am.  Rep.  684. 

Without  regard  to  the  rights  of  the  shipper  and  carrier,  as 
they  may  appear  under  special  contracts,  the  agreement  which 
the  law  imports  into  every  bill  of  lading  which  does  not  stipu- 
late the  price  to  be  paid  for  the  service  is,  that  the  compensa- 
tion shall  be  reasonable,  and  such  as  is  customarily  charged 
others  for  like  service  under  like  conditions.  London,  etc.,  R. 
W.  Co.  V.  Evershed,  L.  R.  3  App.  Cases,  1029.  This  is  the  con- 
tract which  the  law  makes  for  the  parties,  and  which  is  imported 
into  every  bill  of  lading  which  contains  no  express  stipulation 
covering  the  subject  of  the  amount  to  be  paid.  The  conclusion 
which  follows  is,  that  in  the  absence  of  an  express  agreement 
in  respect  to  the  amount  to  be  charged  written  in  the  bills  of 
lading,  the  law  implies  that  the  amount  shall  be  the  reasonable 
or  customary  charge.  It  is  neither  averred  nor  proved  that  the 
amount  collected  was  unreasonable,  or  more  than  the  usual  or 
customary  charge  for  like  services.  The  plaintiffs  were,  there- 
fore, not  entitled  to  recover. 

The  judgment  is  reversed,  with  costs,  with  directions  to  the 
court  to  sustain  the  motion  for  a  new  trial. 


246 


MUNN  V.  ILLINOIS.  §  70 

70.     MUNN  V.  ILLINOIS, 

94  U.  S.  113.     1876. 

Action  against  Munn  and  Scott,  owners  of  a  grain  elevator  in 
Chicago,  for  failing  to  take  out  a  license  under  a  statute  passed 
by  the  legislature  in  pursuance  and  under  authority  of  an  ar- 
ticle of  the  constitution  of  Illinois,  and  for  charging  for  storage 
more  than  the  rates  fixed  by  such  statute.  The  defendants  were 
found  guilty  and  fined  $100,  and  this  was  affirmed  by  the  su- 
preme court  of  Illinois.  Munn  &  Scott  sued  out  writs  of  error 
to  this  court. 

Mr.  Chief  Justice  Waite  delivered  the  opinion  of  the  court. 

The  question  to  be  determined  in  this  case  is  whether  the 
general  assembly  of  Illinois  can,  under  the  limitations  upon  the 
legislative  power  of  the  states  imposed  by  the  Constitution  of  the 
United  States,  fix  by  law  the  maximum  of  charges  for  the  stor- 
age of  grain  in  warehouses  at  Chicago  and  other  places  in  the 
state  having  not  less  than  one  hundred  thousand  inhabitants, 
"in  which  grain  is  stored  in  bulk,  and  in  which  the  grain  of 
different  owners  is  mixed  together,  or  in  which  grain  is  stored 
in  such  a  manner  that  the  identity  of  different  lots  or  parcels 
cannot  be  accurately  preserved." 

It  is  claimed  that  such  a  law  is  repugnant — 

1.  To  that  part  of  sec.  8,  art.  1,  of  the  Constitution  of  the 
United  States  w^hich  confers  upon  Congress  the  power  "to  reg- 
ulate commerce  with  foreign  nations  and  among  the  several 
states ; ' ' 

2.  To  that  part  of  sec.  9  of  the  same  article  which  provides 
that  "no  preference  shall  be  given  by  any  regulation  of  com- 
merce or  revenue  to  the  ports  of  one  state  over  those  of  an- 
other;" and 

3.  To  that  part  of  amendment  14  which  ordains  that  no  state 
shall  "deprive  any  person  of  life,  liberty,  or  property,  without 
due  process  of  law,  nor  deny  to  any  person  within  its  juris- 
diction the  equal  protection  of  the  laws." 

We  will  consider  the  last  of  these  objections  first. 
Every  statute  is  presumed  to  be  constitutional.     The  courts 
.  ought  not  to  declare  one  to  be  unconstitutional,   unless  it  is 
clearly  so.     If  there  is  doubt,  the  expressed  will  of  the  legisla- 
ture should  be  sustained. 

The  Constitution  contains  no  definition  of  the  word  "de- 
prive," as  used  in  the  Fourteenth  Amendment.  To  determine 
its  signification,  therefore,  it  is  necessary  to  ascertain  the  effect 

247 


§  70  EIGHTS  AND  DUTIES  OF  COMMON  CARRIEE. 

which  usage  has  given  it,  when  employed  in  the  same  or  a  like 
connection. 

While  this  provision  of  the  amendment  is  new  in  the  Consti- 
tution of  the  United  States,  as  a  limitation  upon  the  powers  of 
the  states,  it  is  old  as  a  principle  of  civilized  government.  It 
is  found  in  Magna  Charta,  and,  in  substance  if  not  in  form,  in 
nearly  or  quite  all  the  constitutions  that  have  been  from  time 
to  time  adopted  by  the  several  states  of  the  Union,  By  the  Fifth 
Amendment,  it  was  introduced  into  the  Constitution  of  the 
United  States  as  a  limitation  upon  the  powers  of  the  national 
government,  and  by  the  Fourteenth,  as  a  guaranty  against  any 
encroachment  upon  an  acknowledged  right  of  citizenship  by  the 
legislature  of  the  states. 

When  the  people  of  the  United  Colonies  separated  from  Great 
Britain,  they  changed  the  form,  but  not  the  substance,  of  their 
government.  They  retained  for  the  purposes  of  government 
all  the  powers  of  the  British  Parliament,  and  through  their 
state  constitutions,  or  other  forms  of  social  compact,  undertook 
to  give  practical  effect  to  such  as  they  deemed  necessary  for  the 
<?ommon  good  and  the  security  of  life  and  property.  All  the 
powers  which  they  retained  they  committed  to  their  respective 
states,  unless  in  express  terms  or  by  implication  reserved  to 
themselves.  Subsequently,  when  it  was  found  necessary  to  es- 
tablish a  national  government  for  national  purposes,  a  part  of 
the  powers  of  the  states  and  of  the  people  of  the  states  was 
granted  to  the  United  States  and  the  people  of  the  United 
States.  This  grant  operated  as  a  further  limitation  upon  the 
powers  of  the  states,  so  that  now  the  governments  of  the  states 
possess  all  the  powers  of  the  Parliament  of  England,  except 
such  as  have  been  delegated  to  the  United  States  or  reserved  by 
the  people.  The  reservations  by  the  people  are  shown  in  the 
prohibitions  of  the  constitutions. 

When  one  becomes  a  member  of  society,  he  necessarily  parts 
with  some  rights  or  privileges,  which,  as  an  individual  not  af- 
fected by  his  relations  to  others,  he  might  retain.  "A  body  poli- 
tic," as  aptly  defined  in  the  preamble  of  the  Constitution  of 
Massachusetts,  "  is  a  social  compact  by  which  the  whole  people 
covenants  with  each  citizen,  and  each  citizen  with  the  whole  peo- 
ple, that  all  shall  be  governed  by  certain  laws  for  the  common 
good."  This  does  not  confer  power  upon  the  whole  people  to 
control  rights  which  are  purely  and  exclusively  private,  Thorpe  v. 
Rutland  &  B.  R.  R.  Co.,  27  Vt.  143,  62  Am.  D.  625 ;  but  it  does 
authorize  the  establishment  of  laws  requiring  each  citizen  to  so 
conduct  himself,  and  so  use  his  own  property,  as  not  unnecessar- 
ily to  injure  another.     This  is  the  very  essence  of  government, 

248 


MUNN  V.  ILLINOIS.  §  70 

and  has  found  expression  in  the  maxim  sic  utere  tuo  ut  alienum 
non  laedas.  From  this  source  come  the  police  powers,  which,  as 
was  said  by  Mr.  Chief  Justice  Taney  in  the  License  Cases,  5 
How.  583,  ' '  are  nothing  more  or  less  than  the  powers  of  govern- 
ment inherent  in  every  sovereignty,  .  .  .  that  is  to  say, 
.  the  power  to  govern  men  and  things."  Under  these 
powers  the  government  regulates  the  conduct  of  its  citizens  one 
towards  another,  and  the  manner  in  which  each  shall  use  his  own 
property,  when  such  regulation  becomes  necessary  for  the  pub- 
lic good.  In  their  exercise  it  has  been  customary  in  England 
from  time  immemorial,  and  in  this  country  from  its  first  col- 
onization, to  regulate  ferries,  common  carriers,  hackmen,  bakers, 
millers,  wharfingers,  innkeepers,  &c.,  and  in  so  doing  to  fix  a 
maximum  of  charge  to  be  made  for  services  rendered,  accommo- 
dations furnished,  and  articles  sold.  To  this  day,  statutes  are  to 
be  found  in  many  of  the  States  upon  some  or  all  these  subjects ; 
and  we  think  it  has  never  yet  been  successfully  contended  that 
such  legislation  came  within  any  of  the  constitutional  prohibi- 
tions against  interference  with  private  property.  With  the  Fifth 
Amendment  in  force,  Congress,  in  1820,  conferred  power  upon 
the  city  of  Washington  "to  regulate  .  .  .  the  rates  of 
wharfage  at  private  wharves,  .  .  .  the  sweeping  of  chim- 
neys, and  to  fix  the  rates  of  fees  therefor,  .  .  .  and  the 
weight  and  quality  of  bread,"  3  Stat.  587,  sec.  7;  and,  in  1848, 
"to  make  all  necessary  regulations  respecting  hackney  carriages 
and  the  rates  of  fare  of  the  same,  and  the  rates  of  hauling  by 
cartmen,  wagoners,  carmen,  and  draymen,  and  the  rates  of  com- 
mission of  auctioneers, ' '  9  id.  224,  sec.  2. 

From  this  it  is  apparent  that,  down  to  the  time  of  the  adoption 
of  the  Fourteenth  Amendment,  it  was  not  supposed  that  statutes 
regulating  the  use,  or  even  the  price  of  the  use,  of  private  prop- 
erty necessarily  deprived  an  owner  of  his  property  without  due 
process  of  law.  Under  some  circumstances  they  may,  but  not 
under  all.  The  amendment  does  not  change  the  law  in  this  par- 
ticular ;  it  simply  prevents  the  States  from  doing  that  which  will 
operate  as  such  a  deprivation. 

This  brings  us  to  inquire  as  to  the  principles  upon  which  this 
power  of  regulation  rests,  in  order  that  we  may  determine  what 
is  within  and  what  without  its  operative  effect.  Looking,  then, 
to  the  common  law,  from  whence  came  the  right  which  the  Con- 
stitution protects,  we  find  that  when  private  property  is  "af- 
fected with  a  public  interest,  it  ceases  to  be  juris  privati  only." 
This  was  said  by  Lord  Chief  Justice  Hale  more  than  two  hun- 
dred years  ago,  in  his  treatise  De  Portibus  Maris,  1  Harg.  Law 
Tracts,  78,  and  has  been  accepted  without  objection  as  an  essen- 

249 


§  70  BIGHTS  AND  DUTIES  OF  COMMON  CAEEIER. 

tial  element  in  the  law.  of  property  ever  since.  Property  does 
become  clothed  with  a  public  interest  when  used  in  a  manner  to 
make  it  of  public  consequence,  and  affect  the  community  at  large. 
When,  therefore,  one  devotes  his  property  to  a  use  in  which  the 
public  has  an  interest,  he,  in  effect,  grants  to  the  public  an  in- 
terest in  that  use,  and  must  submit  to  be  controlled  by  the  pub- 
lic for  the  common  good,  to  the  extent  of  the  interest  he  has  thus 
created.  He  may  withdraw  his  grant  by  discontinuing  the  use ; 
but,  so  long  as  he  maintains  the  use,  he  must  submit  to  the  con- 
trol. 

Thus,  as  to  ferries.  Lord  Hale  says,  in  his  treatise  Be  Jure 
Maris,  1  Harg.  Law  Tracts,  6,  the  king  has  ' '  a  right  of  franchise 
or  privilege,  that  no  man  may  set  up  a  common  ferry  for  all  pas- 
sengers, without  a  prescription  time  out  of  mind,  or  a  charter 
from  the  king.  He  may  make  a  ferry  for  his  own  use  or  the  use 
of  his  family,  but  not  for  the  common  use  of  all  the  king's  sub- 
jects passing  that  way;  because  it  doth  in  consequence  tend  to  a 
common  charge,  and  is  become  a  thing  of  public  interest  and 
use,  and  every  man  for  his  passage  pays  a  toll,  which  is  a  com- 
mon charge,  and  every  ferry  ought  to  be  under  a  public  regula- 
tion, viz.,  that  it  give  attendance  at  due  times,  keep  a  boat  in 
due  order,  and  take  but  reasonable  toll ;  for  if  he  fail  in  these  he 
is  finable."  So  if  one  owns  the  soil  and  landing-places  on  both 
banks  of  a  stream,  he  cannot  use  them  for  the  purposes  of  a  pub- 
lic ferry,  except  upon  such  terms  and  conditions  as  the  body 
politic  may  from  time  to  time  impose ;  and  this  because  the  com- 
mon good  requires  that  all  public  ways  shall  be  under  the  control 
of  the  public  authorities.  This  privilege  or  prerogative  of  the 
king,  who  in  this  connection  only  represents  and  gives  another 
name  to  the  body  politic,  is  not  primarily  for  his  profit,  but  for 
the  protection  of  the  people  and  the  promotion  of  the  general 
welfare. 

And,  again,  as  to  wharves  and  wharfingers.  Lord  Hale,  in  his 
treatise  Be  Portihtis  Maris,  already  cited,  says : 

"A  man,  for  his  own  private  advantage,  may,  in  a  port  or 
to"«Ti,  set  up  a  wharf  or  crane,  and  may  take  what  rates  he  and 
his  customers  can  agree  for  cranage,  wharfage,  housellage,  pe- 
sage;  for  he  doth  no  more  than  is  lawful  for  any  man  to  do, 
viz.,  makes  the  most  of  his  own.  ...  If  the  king  or  sub- 
ject have  a  public  wharf,  unto  which  all  persons  that  come  to 
that  port  must  come  and  unlade  or  lade  their  goods  as  for  the 
purpose,  because  they  are  the  wharfs  only  licensed  by  the  queen, 
or  because  there  is  no  other  wharf  in  that  port,  as  it 
may  fall  out  where  a  port  is  newly  erected;  in  that  case  there 
cannot  be  taken  arbitrary  and  excessive    duties    for    cranage, 

250 


MUNN  V.  ILLINOIS.  §  70 

wharfage,  pesage,  &c.,  neither  can  they  be  enhanced  to  an  im- 
moderate rate ;  but  the  duties  must  be  reasonable  and  moderate, 
though  settled  by  the  king's  license  or  charter.  For  now  the 
wharf  and  crane  and  other  conveniences  are  affected  with  a  pub- 
lic interest,  and  they  cease  to  be  jiiris  privati  only ;  as  if  a  man 
set  out  a  street  in  new  building  on  his  own  land,  it  is  now  no 
longer  bare  private  interest,  but  is  affected  by  a  public  interest." 

This  statement  of  the  law  by  Lord  Hale  was  cited  with  ap- 
probation and  acted  upon  by  Lord  Kenyon  at  the  beginning  of 
the  present  century,  in  Bolt  v.  Stennett,  8  T.  R.  606. 

And  the  sam.e  has  been  held  as  to  warehouses  and  warehouse- 
men. In  Allnutt  V.  Inglis,  12  East,  527,  decided  in  1810,  it  ap- 
peared that  the  London  Dock  Company  had  built  warehouses  in 
which  wines  were  taken  in  store  at  such  rates  of  charge  as  the 
company  and  the  owners  might  agree  upon.  Afterwards  the 
company  obtained  authority,  under  the  general  warehousing  act, 
to  receive  wines  from  importers  before  the  duties  upon  the  im- 
portation were  paid;  and  the  question  was,  whether  they  could 
charge  arbitrary  rates  for  such  storage,  or  must  be  content  with 
a  reasonable  compensation.  Upon  this  point  Lord  EUenborough 
said  (p.  537)  : 

' '  There  is  no  doubt  that  the  general  principle  is  favored,  both  in 
law  and  justice,  that  every  man  may  fix  what  price  he  pleases 
upon  his  own  property,  or  the  use  of  it;  but  if  for  a  particular 
purpose  the  public  have  a  right  to  resort  to  his  premises  and 
make  use  of  them,  and  he  have  a  monopoly  in  them  for  that  pur- 
pose, if  he  will  take  the  benefit  of  that  monopoly,  he  must,  as  an 
equivalent,  perform  the  duty  attached  to  it  on  reasonable  terms. 
The  question  then  is,  whether,  circumstanced  as  this  company  is, 
by  the  combination  of  the  warehousing  act  with  the  act  by  which 
they  were  originally  constituted,  and  with  the  actually  existing 
state  of  things  in  the  port  of  London,  whereby  they  alone  have 
the  warehousing  of  these  wines,  they  be  not,  according  to  the 
doctrine  of  Lord  Hale,  obliged  to  limit  themselves  to  a  reasonable 
compensation  for  such  warehousing.  And,  according  to  him, 
whenever  the  accident  of  time  casts  upon  a  party  the  benefit 
of  having  a  legal  monopoly  of  landing  goods  in  a  public  port, 
as  where  he  is  the  owner  of  the  only  wharf  authorized  to  receive 
goods  which  happens  to  be  built  in  a  port  newly  erected,  he  is 
confined  to  take  reasonable  compensation  only  for  the  use  of  the 
wharf. ' ' 

And  further  on  (p.  539)  : 

"It  is  enough  that  there  exists  in  the  place  and  for  the  com- 
modity in  question  a  virtual  monopoly  of  the  warehousing  for 
this  purpose,  on  which  the  principle  of  law  attaches,  as  laid  down 

251 


§  70  EIGHTS  AND  DUTIES  OF  COMMON  CAEEIEE. 

by  Lord  Hale  in  the  passage  referred  to  (that  from  De  Portihus 
Maris  already  quoted),  which  includes  the  good  sense  as  well  as 
the  law  of  the  subject." 

And  in  the  same  case  Le  Blanc,  J.,  said  (p.  541)  : 

"Then,  admitting  these  warehouses  to  be  private  property, 
and  that  the  company  might  discontinue  this  application  of  them, 
or  that  they  might  have  made  what  terms  they  pleased  in  the 
first  instance,  yet  having,  as  they  now  have,  this  monopoly,  the 
question  is,  whether  the  warehouses  be  not  private  property 
clothed  with  a  public  right,  and,  if  so,  the  principle  of  law  at- 
taches upon  them.  The  privilege,  then,  of  bonding  these  wines 
being  at  present  confined  by  the  act  of  Parliament  to  the  com- 
pany 's  warehouses,  is  it  not  the  privilege  of  the  public,  and  shall 
not  that  which  is  for  the  good  of  the  public  attach  on  the  monop- 
oly, that  they  shall  not  be  bound  to  pay  an  arbitrary  but  a  reas- 
onable rent?  But  upon  this  record  the  company  resist  having 
their  demand  for  warehouse  rent  confined  within  any  limit ;  and, 
though  it  does  not  follow  that  the  rent  in  fact  fixed  by  them  is 
unreasonable,  they  do  not  choose  to  insist  on  its  being  reasonable 
for  the  purpose  of  raising  the  question.  For  this  purpose,  there- 
fore, the  question  may  be  taken  to  be  whether  they  may  claim 
an  unreasonable  rent.  But  though  this  be  private  property,  yet 
the  principle  laid  down  by  Lord  Hale  attaches  upon  it,  that 
when  private  property  is  affected  with  a  public  interest  it  ceases 
to  be  juris  privati  only;  and,  in  case  of  its  dedication  to  such  a 
purpose  as  this,  the  owners  canot  take  arbitrary  and  excessive 
duties,  but  the  duties  must  be  reasonable." 

We  have  quoted  thus  largely  the  words  of  these  eminent  ex- 
pounders of  the  common  law,  because,  as  we  think,  we  find  in 
them  the  principle  which  supports  the  legislation  we  are  now 
examining.  Of  Lord  Hale  it  was  once  said  by  a  learned  Ameri- 
can judge : 

"In  England,  even  on  rights  of  prerogative,  they  scan  his 
words  with  as  much  care  as  if  they  had  been  found  in  Magna 
Charta ;  and  the  meaning  once  ascertained,  they  do  not  trouble 
themselves  to  search  any  further."    6  Cow.  (N.  Y.)  536,  note. 

In  later  times,  the  same  principle  came  under  consideration  in 
the  Supreme  Court  of  Alabama.  That  court  was  called  upon, 
in  1841,  to  decide  whether  the  power  granted  to  the  city  of 
Mobile  to  regulate  the  weight  and  price  of  bread  was  unconstitu- 
tional, and  it  was  contended  that  "it  would  interfere  with  the 
right  of  the  citizen  to  pursue  his  lawful  trade  or  calling  in  the 
mode  his  judgment  might  dictate;"  but  the  court  said,  "there 
is  no  motive  .  .  .  for  this  interference  on  the  part  of  the 
legislature  with  the  lawful  actions  of  individuals,  or  the  mode 

252 


MUNN  V.  ILLINOIS.  §  70 

in  which  private  property  shall  be  enjoyed,  unless  such  calling 
affects  the  public  interest,  or  private  property  is  employed  in 
a  manner  which  directly  affects  the  body  of  the  people.  Upon 
this  principle,  in  this  State,  tavern-keepers  are  licensed;  .  .  . 
and  the  County  Court  is  required,  at  least  once  a  year,  to  settle 
the  rates  of  innkeepers.  Upon  the  same  principle  is  founded  the 
control  which  the  legislature  has  always  exercised  in  the  estab- 
lishment and  regulation  of  mills,  ferries,  bridges,  turnpike  roads 
and  other  kindred  subjects."    Mobile  v.  Yuille,  3  Ala.  N.  S.  140. 

From  the  same  source  comes  the  power  to  regulate  the  charges 
of  common  carriers,  which  was  done  in  England  as  long  ago  as 
the  third  year  of  the  reign  of  "William  and  ]\Iary,  and  continued 
until  within  a  comparatively  recent  period.  And  in  the  first  stat- 
ute we  find  the  following  suggestive  preamble,  to  wit : 

"And  whereas  divers  wagoners  and  other  carriers,  by  combi- 
nation among  themselves,  have  raised  the  prices  of  carriage  of 
goods  in  many  places  to  excessive  rates,  to  the  great  injury  of 
the  trade :  Be  it,  therefore,  enacted, "  &c.  3  W.  &  M.  c.  12,  §  24 ; 
3  Stat,  at  Large  (Great  Britain),  481. 

Common  carriers  exercise  a  sort  of  public  office,  and  have  dut- 
ies to  perform  in  which  the  public  is  interested.  New  Jersey 
Nav.  Co.  V.  Merchants'  Bank,  6  How.  382.  Their  business  is, 
therefore,  ' '  affected  with  a  public  interest, ' '  within  the  meaning 
of  the  doctrine  which  Lord  Hale  has  so  forcibly  stated. 

But  we  need  not  go  further.  Enough  has  already  been  said 
to  show  that,  when  private  property  is  devoted  to  a  public  use, 
it  is  subject  to  public  regulation.  It  remains  only  to  ascertain 
whether  the  warehouses  of  these  plaintiffs  in  error,  and  the  busi- 
ness which  is  carried  on  there,  come  within  the  operation  of  this 
principle. 

For  this  purpose  we  accept  as  true  the  statements  of  fact  con- 
tained in  the  elaborate  brief  of  one  of  the  counsel  of  the  plain- 
tiffs in  error.  From  these  it  appears  that  "the  great  producing 
region  of  the  West  and  North-west  sends  its  grain  by  water  and 
rail  to  Chicago,  where  the  greater  part  of  it  is  shipped  by  vessel 
for  transportation  to  the  seaboard  by  the  Great  Lakes,  and  some 
of  it  is  forwarded  by  railway  to  the  Eastern  ports. 
Vessels,  to  some  extent,  are  loaded  in  the  Chicago  harbor,  and 
sailed  through  the  St.  Lawrence  directly  to  Europe.  . 
The  quantity  [of  grain]  received  in  Chicago  has  made  it  the 
greatest  grain  market  in  the  world.  This  business  has  created 
a  demand  for  means  by  which  the  immense  quantity  of  grain  can 
be  handled  or  stored,  and  these  have  been  found  in  grain  ware- 
houses, which  are  commonly  called  elevators,  because  the  grain 
is  elevated  from  the  boat  or  car,  by  machinery  operated  by 

253 


§  70  EIGHTS  AND  DUTIES  OF  COilMOX  CAKEIEE. 

steam,  into  tlie  bins  prepared  for  its  reception,  and  elevated  from 
the  bins,  by  a  like  process,  into  the  vessel  or  car  which  is  to  carry 
it  on.  .  .  .  In  this  way  the  largest  traffic  between  the  citi- 
zens of  the  country  north  and  west  of  Chicago  and  the  citizens 
of  the  country  lying  on  the  Atlantic  coast  north  of  Washington 
is  in  grain  which  passes  through  the  elevators  of  Chicago.  In 
this  way  the  trade  in  grain  is  carried  on  by  the  inhabitants  of 
seven  or  eight  of  the  great  States  of  the  West  with  four  or  five  of 
the  States  lying  on  the  sea-shore,  and  forms  the  largest  part  of 
inter-state  commerce  in  these  States.  The  grain  warehouses  or 
elevators  in  Chicago  are  immense  structures,  holding  from  300,- 
000  to  1,000,000  bushels  at  one  time,  according  to  size.  They  are 
divided  into  bins  of  large  capacity  and  great  strength. 
They  are  located  with  the  river  harbor  on  one  side  and  the  rail- 
way tracks  on  the  other ;  and  the  grain  is  run  through  them  from 
car  to  vessel,  or  boat  to  car,  as  may  be  demanded  in  the  course  of 
business.  It  has  been  found  impossible  to  preserve  each  owner's 
grain  separate,  and  this  has  given  rise  to  a  system  of  inspection 
and  grading,  by  which  the  grain  of  different  owners  is  mixed, 
and  receipts  issued  for  the  number  of  bushels  which  are  negotia- 
ble, and  redeemable  in  like  kind,  upon  demand.  This  mode  of 
conducting  the  business  was  inaugurated  more  than  twenty  years 
ago,  and  has  grown  to  immense  proportions.  The  railways  have 
found  it  impracticable  to  ovm  such  elevators,  and  public  policy 
forbids  the  transaction  of  such  business  by  the  carrier ;  the  own- 
ership has,  therefore,  been  by  private  individuals,  who  have  em- 
barked their  capital  and  devoted  their  industry  to  such  business 
as  a  private  pursuit." 

In  this  connection  it  must  also  be  borne  in  mind  that,  although 
in  1874  there  were  in  Chicago  fourteen  warehouses  adapted  to 
this  particular  business,  and  owned  by  about  thirty  persons,  nine 
business  firms  controlled  them,  and  that  the  prices  charged  and 
received  for  storage  were  such  "as  have  been  from  year  to  year 
agreed  upon  and  established  by  the  different  elevators  or  ware- 
houses in  the  city  of  Chicago,  and  which  rates  have  been  annu- 
ally published  in  one  or  more  newspapers  printed  in  said  city, 
in  the  month  of  January  in  each  year,  as  the  established  rates 
for  the  year  then  next  ensuing  such  publication."  Thus  it  is 
apparent  that  all  the  elevating  facilities  through  which  these 
vast  productions  "of  seven  or  eight  great  States  of  the  West" 
must  pass  on  the  way  "to  four  or  five  of  the  States  on  the  sea- 
shore" may  be  a  "virtual"  monopoly. 

Under  such  circumstances  it  is  difficult  to  see  why,  if  the 
common  carrier,  or  the  miller,  or  the  ferrjonan,  or  the  inn- 
keeper, or  the  wharfinger,  or  the  baker,  or  the  cartman,  or  the 

254 


MUNN  V.  ILLINOIS.  §  70 

hackney-coachman,  pursues  a  public  employment  and  exercises 
"a  sort  of  public  office,"  these  plaintiffs  in  error  do  not.  They 
stand,  to  use  again  the  language  of  their  counsel,  in  the  very 
' '  gateway  of  commerce, ' '  and  take  toll  from  all  who  pass.  Their 
business  most  certainly  "tends  to  a  common  charge,  and  is 
become  a  thing  of  public  interest  and  use."  Every  bushel  of 
grain  for  its  passage  "pays  a  toll,  which  is  a  common  charge," 
and,  therefore,  according  to  Lord  Hale,  every  such  warehouse- 
man ' '  ought  to  be  under  public  regulation,  viz.,  that  he  *  *  * 
take  but  reasonable  toll."  Certainly,  if  any  business  can  be 
clothed  "with  a  public  interest,  and  cease  to  be  juris  privati 
only,"  this  has  been.  It  may  not  be  made  so  by  the  operation 
of  the  Constitution  of  Illinois  or  this  statute,  but  it  is  by  the 
facts. 

We  also  are  not  permitted  to  overlook  the  fact  that,  for  some 
reason,  the  people  of  Illinois,  when  they  revised  their  Constitu- 
tion in  1870,  saw  fit  to  make  it  the  duty  of  the  general  assem- 
bly to  pass  laws  ' '  for  the  protection  of  producers,  shippers,  and 
receivers  of  grain  and  produce,"  art.  13,  sect.  7;  and  by  sect.  5 
of  the  same  article,  to  require  all  railroad  companies  receiving 
and  transporting  grain  in  bulk  or  otherwise  to  deliver  the  same 
at  any  elevator  to  which  it  might  be  consigned,  that  could  be 
reached  by  any  track  that  was  or  could  be  used  by  such  com- 
pany, and  that  all  railroad  companies  should  permit  connec- 
tions to  be  made  with  their  tracks,  so  that  any  public  ware- 
house, &c.,  might  be  reached  by  the  cars  on  their  railroads.  This 
indicates  very  clearly  that  during  the  twenty  years  in  which 
this  peculiar  business  had  been  assuming  its  present  "immense 
proportions, ' '  something  had  occurred  which  led  the  whole  body 
of  the  people  to  suppose  that  remedies  such  as  are  usually  em- 
ployed to  prevent  abuses  by  virtual  monopolies  might  not  be 
inappropriate  here.  For  our  purposes  we  must  assume  that, 
if  a  state  of  facts  could  exist  that  would  justify  such  legislation, 
it  actually  did  exist  when  the  statute  now  under  consideration 
was  passed.  For  us  the  question  is  one  of  power,  not  of  expe- 
diency. If  no  state  of  circumstances  could  exist  to  justify  such 
a  statute,  then  we  may  declare  this  one  void,  because  in  excess 
of  the  legislative  power  of  the  State.  But  if  it  could,  we  must 
presume  it  did.  Of  the  propriety  of  legislative  interference 
within  the  scope  of  legislative  power,  the  legislature  is  the  ex- 
clusive judge. 

Neither  is  it  a  matter  of  any  moment  that  no  precedent  can 
be  found  for  a  statute  precisely  like  this.  It  is  conceded  that 
the  business  is  one  of  recent  origin,  that  its  growth  has  been 
rapid,  and  that  it  is  already  of  great  importance.    And  it  must 

255 


§  7U  EIGHTS  A^D  DUTIES  Oi-^  COMMON  CAEEIER. 

also  be  conceded  that  it  is  a  business  in  which  the  whole  public 
has  a  direct  and  positive  interest.  It  presents,  therefore,  a 
case  for  the  application  of  a  long-known  and  well-established 
principle  in  social  science,  and  this  statute  simply  extends  the 
law  so  as  to  meet  this  new  development  of  commercial  progress. 
There  is  no  attempt  to  compel  these  owners  to  grant  the  pub- 
lic an  interest  in  their  property,  but  to  declare  their  obligations, 
if  they  use  it  in  this  particular  manner. 

It  matters  not  in  this  case  that  these  plaintiffs  in  error  had 
built  their  warehouses  and  established  their  business  before  the 
regulations  complained  of  were  adopted.  What  they  did  was 
from  the  beginning  subject  to  the  power  of  the  body  politic  to 
require  them  to  conform  to  such  regulations  as  might  be  estab- 
lished by  the  proper  authorities  for  the  common  good.  They 
entered  upon  their  business  and  provided  themselves  with  the 
means  to  carry  it  on  subject  to  this  condition.  If  they  did  not 
vfish  to  submit  themselves  to  such  interference,  they  should  not 
have  clothed  the  public  with  an  interest  in  their  concerns.  The 
same  principle  applies  to  them  that  does  to  the  proprietor  of  a 
hackney-carriage,  and  as  to  him  it  has  never  been  supposed  that 
he  was  exempt  from  regulating  statutes  or  ordinances  because 
he  had  purchased  his  horses  and  carriage  and  established  his 
business  before  the  statute  or  the  ordinance  was  adopted. 

It  is  insisted,  however,  that  the  owner  of  property  is  entitled 
to  a  reasonable  compensation  for  its  use,  even  though  it  be 
clothed  with  a  public  interest,  and  that  what  is  reasonable  is  a 
judicial  and  not  a  legislative  question. 

As  has  already  been  shown,  the  practice  has  been  other- 
wise. In  countries  where  the  common  law  prevails,  it  has 
been  customary  from  time  immemorial  for  the  legislature  to 
declare  what  shall  be  a  reasonable  compensation  under  such 
circumstances,  or,  perhaps  more  properly  speaking,  to  fix  a 
maximum  beyond  which  any  charge  made  would  be  unreason- 
able. Undoubtedly,  in  mere  private  contracts,  relating  to  mat- 
ters in  which  the  public  has  no  interest,  what  is  reasonable 
must  be  ascertained  judicially.  But  this  is  because  the  legis- 
lature has  no  control  over  such  a  contract.  So,  too,  in  matters 
which  do  affect  the  public  interest,  and  as  to  which  legislative 
control  may  be  exercised,  if  there  are  no  statutory  regulations 
upon  the  subject,  the  courts  must  determine  what  is  reasonable. 
The  controlling  fact  is  the  power  to  regulate  at  all.  If  that 
exists,  the  right  to  establish  the  maximum  of  charge,  as  one  of 
the  means  of  regulation,  is  implied.  In  fact,  the  common-law 
rule,  which  requires  the  charge  to  be  reasonable,  is  itself  a  regu- 
lation as  to  price.     Without  it  the  owner  could  make  his  rates 

256 


C,  M.  &  ST.  P.  R.  R.  CO.  V.  MINNESOTA.  §§  70,  71 

at  will,  and  compel  the  public  to  yield  to  his  terms,  or  forego 
the  use. 

But  a  mere  common-law  regulation  of  trade  or  business  may 
be  changed  by  statute.  A  person  has  no  property,  no  vested 
interest,  in  any  rule  of  the  common  law.  That  is  only  one  of 
the  forms  of  municipal  law,  and  is  no  more  sacred  than  any 
other.  Rights  of  property  which  have  been  created  by  the 
common  law  cannot  be  taken  away  without  due  process;  but 
the  law  itself,  as  a  rule  of  conduct,  may  be  changed  at  the  will, 
or  even  at  the  whim,  of  the  legislature,  unless  prevented  by 
constitutional  limitations.  Indeed,  the  great  office  of  statutes 
is  to  remedy  defects  in  the  common  law  as  they  are  developed, 
and  to  adapt  it  to  the  changes  of  time  and  circumstances.  To 
limit  the  rate  of  charge  for  services  rendered  in  a  public  em- 
ployment, or  for  the  use  of  property  in  which  the  public  has  an 
interest,  is  only  changing  a  regulation  which  existed  before.  It 
establishes  no  new  principle  in  the  law,  but  only  gives  a  new 
effect  to  an  old  one. 

Judgment  affirmed. 


71.  In  Chicago,  Milwaukee  &  St.  Paul  Railway  Co.  v.  Minne- 
sota, 134  U.  S.  418,  10  S.  Ct.  R.  462,  702  (1889),  the  court  con- 
sidered the  power  of  a  Railroad  and  Warehouse  Commission, 
constituted  by  the  Legislature  of  Minnesota,  to  regulate  the 
charges  for  carrying  milk  to  St,  Paul.  Mr.  Justice  Blatchford, 
speaking  for  the  court,  said,  among  other  things  (p.  456)  : 

' '  The  construction  put  upon  the  statute  by  the  Supreme  Court 
of  Minnesota  must  be  accepted  by  this  court,  for  the  purposes  of 
the  present  case,  as  conclusive  and  not  to  be  re-examined  here 
as  to  its  propriety  or  accuracy.  The  Supreme  Court  authoritative- 
ly declares  that  it  is  the  expressed  intention  of  the  legislature  of 
Minnesota,  by  the  statute,  that  the  rates  recommended  and  pub- 
lished by  the  commission,  if  it  proceeds  in  the  manner  pointed 
out  by  the  act,  are  not  simply  advisory,  nor  merely  prima  facie 
equal  and  reasonable,  but  final  and  conclusive  as  to  what  are 
equal  and  reasonable  charges ;  that  Xhe  law  neither  contemplates 
nor  allows  any  issue  to  be  made  or  inquiry  to  be  had  as  to  their 
equality  or  reasonableness  in  fact;  that,  under  the  statute,  the 
rates  published  by  the  commission  are  the  only  ones  that  are 
lawful,  and,  therefore,  in  contemplation  of  law  the  only  ones 
that  are  equal  and  reasonable;  and  that,  in  a  proceeding  for 
a  mandamus  under  the  statute,  there  is  no  fact  to  traverse  except 
the  violation  of  law  in  not  complying  with  the  recommendations 
of  the  commission.  In  other  words,  although  the  railroad  eom- 
17  257 


§  71  EIGHTS  AND  DUTIES  OF  COMMON  CAEEIER. 

pany'is  forbidden  to  establish  rates  that  are  not  equal  and  reas- 
onable, there  is  no  power  in  the  courts  to  stay  the  hands  of 
the  commission,  if  it  chooses  to  establish  rates  that  are  unequal 
and  unreasonable. 

This  being  the  construction  of  the  statute  by  which  we  are 
bound  in  considering  the  present  case,  we  are  of  opinion  that, 
so  construed,  it  conflicts  with  the  Constitution  of  the  United 
States  in  the  particulars  complained  of  by  the  railroad  com- 
pany. It  deprives  the  company  of  its  right  to  a  judicial  investi- 
gation, by  due  process  of  law,  under  the  forms  and  with  the 
machinery  provided  by  the  wisdom  of  successive  ages  for  the 
investigation  judicially  of  the  truth  of  a  matter  in  controversy, 
and  substitutes  therefor,  as  an  absolute  finality,  the  action  of  a 
railroad  commission  which,  in  view  of  the  powers  conceded  to 
it  by  the  state  court,  cannot  be  regarded  as  clothed  with  judicial 
functions  or  possessing  the  machinery  of  a  court  of  justice. 

Under  section  8  of  the  statute,  which  the  Supreme  Court  of 
Minnesota  says  is  the  only  one  which  relates  to  the  matter  of 
the  fixing  by  the  commission  of  general  schedules  of  rates,  and 
which  section,  it  says,  fully  and  exclusively  provides  for  that 
subject,  and  is  complete  in  itself,  all  that  the  commission  is  re- 
quired to  do  is,  on  the  filing  with  it  by  a  railroad  company  of 
copies  of  its  schedules  of  charges,  to  "find"  that  any  part  there- 
of is  in  any  respect  unequal  or  unreasonable,  and  then  it  is  au- 
thorized and  directed  to  compel  the  company  to  change  the  same 
and  adopt  such  charge  as  the  commission  "shall  declare  to  be 
equal  and  reasonable, ' '  and,  to  that  end,  it  is  required  to  inform 
the  company  in  writing  in  what  respect  its  charges  are  unequal 
and  unreasonable.  No  hearing  is  provided  for,  no  summons  or 
notice  to  the  company  before  the  commission  has  found  what  it 
is  to  find  and  declared  what  it  is  to  declare,  no  opportunity  pro- 
vided for  the  company  to  introduce  witnesses  before  the  commis- 
sion, in  fact,  nothing  which  has  the  semblance  of  due  process  of 
law;  and  although,  in  the  present  case,  it  appears  that,  prior  to 
the  decision  of  the  commission,  the  company  appeared  before 
it  by  its  agent,  and  the  commission  investigated  the  rates  charged 
by  the  company  for  transporting  milk,  yet  it  does  not  appear 
what  the  character  of  the  investigation  was  or  how  the  result  was 
arrived  at. 

By  the  second  section  of  the  statute  in  question,  it  is  provided 
that  all  charges  made  by  a  common  carrier  for  the  transportation 
of  passengers  or  property  shall  be  equal  and  reasonable.  Under 
this  provision,  the  carrier  has  a  right  to  make  equal  and  reason- 
able charges  for  such  transportation.  In  the  present  case,  the 
return  alleged  that  the  rate  of  charge  fixed  by  the  commission  was 

258 


C,  M.  &  ST.  P.  R.  R.  CO.  V.  MINNESOTA.  §  71 

not  equal  or  reasonable,  and  the  Supreme  Court  held  that  the 
statute  deprived  the  company  of  the  right  to  sliow  that  judicially. 
The  question  of  the  reasonableness  of  a  rate  of  charge  for  trans- 
portation by  a  railroad  company,  involving  as  it  does  the  ele- 
ment of  reasonableness  both  as  regards  the  company  and  as  re- 
gards the  public,  is  eminently  a  question  for  judicial  investiga- 
tion, requiring  due  process  of  law  for  its  determination.  If  the 
company  is  deprived  of  the  power  of  charging  reasonable  rates 
for  the  use  of  its  property,  and  such  deprivation  t^kes  place  in 
the  absence  of  an  investigation  by  judicial  machinery,  it  is  de- 
prived of  the  lawful  use  of  its  property,  and  thus,  in  substance 
and  effect,  of  the  property  itself,  without  due  process  of  law  and 
in  violation  of  the  Constitution  of  the  United  States ;  and  in  so 
far  as  it  is  thus  deprived,  while  other  persons  are  permitted  to 
receive  reasonable  profits  upon  their  invested  capital,  the  com- 
pany is  deprived  of  the  equal  protection  of  the  laws. ' ' 

Mr.  Justice  Bradley  (Justices  Gray  and  Lamar  concurring) 
vigorously  dissented  (p.  461)  : 

"I  cannot  agree  to  the  decision  of  the  court  in  this  case.  It 
practically  overrules  IMunn  v.  Illinois,  94  U.  S.  113,  and  the  sev- 
eral railroad  cases  that  were  decided  at  the  same  time.  The 
governing  principle  of  those  cases  was  that  the  regulation  and 
settlement  of  the  fares  of  railroads  and  other  public  accommo- 
dations is  a  legislative  prerogative  and  not  a  judicial  one.  This 
is  a  principle  which  I  regard  as  of  great  importance.  When  a 
railroad  company  is  chartered,  it  is  for  the  purpose  of  per- 
forming a  duty  which  belongs  to  the  State  itself.  It  is 
chartered  as  an  agent  of  the  State  for  furnishing  public  accom- 
modation. The  State  might  build  its  railroads  if  it  saw  fit.  It 
is  its  duty  and  its  prerogative  to  provide  means  of  intercom- 
munication between  one  part  of  its  territory  and  another.  And 
this  duty  is  devolved  upon  the  legislative  department.  If  the 
legislature  commissions  private  parties,  whether  corporations  or 
individuals,  to  perform  this  duty,  it  is  its  prerogative  to  fix  the 
fares  and  freights  which  they  may  charge  for  their  services. 
When  merely  a  road  or  a  canal  is  to  be  constructed,  it  is  for  the 
legislature  to  fix  the  tolls  to  be  paid  by  those  who  use  it ;  when 
a  company  is  chartered  not  only  to  build  a  road,  but  to  carry  on 
public  transportation  upon  it,  it  is  for  the  legislature  to  fix  the 
charges  for  such  transportation. 

But  it  is  said  that  all  charges  should  be  reasonable,  and  that 
none  but  reasonable  charges  can  be  exacted;  and  it  is  urged 
that  what  is  a  reasonable  charge  is  a  judicial  question.  On  the 
contrary,  it  is  pre-eminently  a  legislative  one,  involving  consid- 
erations of  policy  as  well  as  of  remuneration ;  and  is  usually  de- 

259 


§§  71,  72  EIGHTS  AND  DUTIES  OF  COMMON  CAKEIEE. 

termined  by  the  legislature,  by  fixing  a  maximum  of  charges  in 
the  charter  of  the  company,  or  afterwards,  if  its  hands  are  not 
tied  by  contract.  If  this  maximum  is  not  exceeded,  the  courts 
cannot  interfere.  When  the  rates  are  not  thus  determined,  they 
are  left  to  the  discretion  of  the  company,  subject  to  the  express 
or  implied  condition  that  they  shall  be  reasonable ;  express,  when 
so  declared  by  statute;  implied,  by  the  common  law,  when  the 
statute  is  silent ;  and  the  common  law  has  effect  by  virtue  of  the 
legislative  w^l. 

Thus,  the  legislature  either  fixes  the  charges  at  rates  which 
it  deems  reasonable ;  or  merely  declares  that  they  shall  be  reas- 
onable ;  and  it  is  only  in  the  latter  case,  where  what  is  reasonable 
is  left  open,  that  the  courts  have  jurisdiction  of  the  subject.  I 
repeat :  When  the  legislature  declares  that  the  charges  shall  be 
reasonable,  or,  which  is  the  same  thing,  allows  the  common  law 
rule  to  that  effect  to  prevail,  and  leaves  the  matter  there;  then 
resort  may  be  had  to  the  courts  to  inquire  judicially  whether  the 
charges  are  reasonable.  Then,  and  not  till  then,  is  it  a  judicial 
question.  But  the  legislature  has  the  right,  and  it  is  its  preroga- 
tive, if  it  chooses  to  exercise  it,  to  declare  what  is  reasonable. 

This  is  just  where  I  differ  from  the  majority  of  the  court.  They 
say  in  effect,  if  not  in  terms,  that  the  final  tribunal  of  arbitra- 
ment is  the  judiciary ;  I  say  it  is  the  legislature.  I  hold  that  it  is 
a  legislative  question,  not  a  judicial  one,  unless  the  legislature  or 
the  law  (which  is  the  same  thing),  has  made  it  judicial,  by  pre- 
scribing the  rule  that  the  charges  shall  be  reasonable,  and  leaving 
it  there." 


72.  CHICAGO  AND  NORTHWESTERN  RAILWAY  CO.  V. 

JENKINS. 

103  III.  588.    1882. 

Trover  for  conversion  of  a  consignment  of  paper  held  for  de- 
murrage.   Judgment  for  plaintiff. 

Walker,  J.  It  appears  that  Noyes  &  Messenger,  a  business 
firm  in  Chicago,  had  consigned  to  them  a  quantity  of  paper, 
from  Clinton,  Iowa,  by  the  road  of  appellant.  It  arrived  at  its 
depot  in  Chicago  on  the  4th  of  July,  1872.  The  consignees  were 
afterwards  notified  of  its  arrival.  On  the  11th  of  that  month 
they  paid  the  freight  and  removed  one  dray  load,  but  the  com- 
pany refused  to  deliver  the  balance  of  the  paper  until  the  con- 
signees should  pay  five  dollars  a  day  for  each  day  it  remained 
on  the  track  after  twenty-four  hours  from  the  time  of  its  ar- 

260 


CHICAGO  AND  N.  W.  K.  R.  CO.  v.  JENKINS.  §  72 

rival,  which  was  claimed  for  demurrage.  This  the  consignees 
refused  to  pay,  and  after  a  demand  and  refusal,  brought  trover 
to  recover  damages  for  its  conversion.  The  defendant  pleaded 
the  general  issue. 

The  case  remained  on  the  docket  in  this  condition  until  in 
April,  1874,  when  Noyes  &  Messenger  were  declared  bankrupts 
by  the  United  States  District  Court,  and  appellee  was  appointed 
assignee  of  their  estate,  and  the  requisite  assignment  was  made 
to  him.  No  further  action  was  taken  in  the  case  until  on  the  12th' 
day  of  April,  1878,  when,  with  the  leave  of  the  court,  the  com- 
pany filed  a  plea  that  the  plaintiffs  had  been  adjudged  bank- 
rupts. Jenkins  thereupon  filed  his  petition  for  leave  to  be  sub- 
stituted as  a  party  plaintiff,  and  to  be  permitted  to  prosecute 
the  suit,  and  the  substitution  was  made,  and  the  leave  granted 
by  the  court.     (Passing  over  questions  of  practice.) 

It  is  claimed  that  appellant  had  the  right  to  hold  the  prop- 
erty until  its  charges  for  demurrage  were  paid, — that  they  were 
a  lien  on  the  property,  and  it  was  not  required  to  make  delivery 
until  they  were  paid.  The  claim  is  based  on  rules  and  regu- 
lations adopted  and  published  by  the  company.  It  will  be  con- 
ceded that  all  liens  are  created  by  law,  or  by  contract  of  the 
parties.  Where  the  law  gives  no  lien,  neither  party  can  create 
it  without  the  consent  or  agreement  of  the  other.  Noyes  &  Mes- 
senger were  therefore  not  bound  by  these  rules  unless  they  as- 
sented to  them  when  the  contract  for  shipping  the  goods  was 
entered  into  by  the  parties,  and  such  a  contract  is  not  claimed. 
But  it  is  insisted  that  as  the  rules  were  public,  and  generally 
understood,  it  must  be  presumed  they  assented.  For  the  purpose 
of  creating  such  a  lien  on  property  the  law  will  never  indulge 
such  presumptions.  There  is  no  evidence  or  agreement  that 
either  the  consignor  or  consignee  ever  had  notice  or  knew  of 
such  regulations.  But  even  if  they  had,  unless  they  agreed  to 
be  bound  by  them  the  rule  could  create  no  such  lien. 

We  held  in  the  case  of  Illinois  Central  E.  R.  Co.  v.  Alexan- 
der, 20  111.  23,  that  railroad  companies,  when  they  had  carried 
goods  to  their  destination,  if  not  removed  by  the  consignee  might 
store  them  in  their  warehouses,  and  thus  terminate  their  lia- 
bility as  common  carriers,  and  thereby  assume  the  relation  and 
liabilities  of  warehousemen.  To  the  same  effect  is  the  case  of 
Richards  v.  Michigan  Southern  and  Northern  Indiana  R.  R. 
Co.  id.  404 ;  and  in  the  case  of  Porter  v.  Chicago  and  Rock  Island 
R.  R.  Co.  id.  407,  71  Am.  D.  286,  it  was  held  it  was  their  duty 
to  do  so,  or  remain  liable  for  loss  as  common  carriers.  It  was 
held  in  the  former  of  these  cases,  that  when  stored,  and  they 
had  placed  the  goods  in  their  warehouse,  they  were  entitled 

261 


§§  72,73    EIGHTS  AND  DUTIES  OF  COMMON  CAKKIEE. 

to  charge  the  customary  price  for  such  services,  and  on  such 
charges  being  paid  or  tendered,  and  a  refusal  by  the  company 
to  deliver  on  demand,  it  became  liable  for  a  conversion. 

The  right  to  demurrage,  if  it  exists  as  a  legal  right,  is  con- 
fined to  the  maritime  law,  and  only  exists  as  to  carriers  by  sea- 
going vessels.  But  it  is  believed  to  exist  alone  by  force  of  con- 
tract. All  such  contracts  of  affreightment  contain  an  agree- 
ment for  demurrage,  or  the  custom  of  the  port  allowed  the  con- 
signee to  receive  and  remove  the  goods.  But  the  mode  of  doing 
business  by  the  two  kinds  of  carriers  is  essentially  different. 
Railroad  companies  have  warehouses  in  which  to  store  freight. 
Owners  of  vessels  have  none.  Railroads  discharge  cargoes  car- 
ried by  them.  Carriers  by  ship  do  not,  but  it  is  done  by  the 
consignee.  The  masters  of  vessels  provide  in  the  contract  for 
demurrage,  while  railroads  do  not,  and  it  is  seen  these  essen- 
tial differences  are,  under  the  rules  of  the  maritime  law,  wholly 
inapplicable  to  railroad  carriers. 

Perceiving  no  error  in  the  record,  the  judgment  of  the  Appel- 
late Court  is  affirmed. 

Judgment  affirmed, 

73.     SCOFIELD  V.  RAILWAY  CO., 

43  Ohio  St.  571;  54  Am.  B.  846.     1885. 

Injunction  to  prevent  the  collection  of  freights.  Relief 
granted  below. 

Atherton,  J.  The  main  question  in  this  case,  and  to  which  all 
others  are  subordinate,  is  this: 

Has  the  defendant  a  right  to  discriminate  between  its  freight- 
ers and  customers,  and  furnish  transportation  to  one  at  a  less 
rate  than  to  others,  in  a  case  where  such  discrimination  is  in- 
jurious to  and  destructive  of  the  legitimate  business  of  others? 

That  ultimate  question  requires  the  consideration  of  several 
other  propositions  and  queries,  some  of  which  may  be  stated  as 
follows : 

1.  What  were  the  rights  and  duties  of  common  carriers  at 
common  law,  and  was  the  shipper  entitled  to  have  his  goods 
shipped  at  a  rate  equal  to  that  charged  to  others,  or  was  he  en- 
titled to  any  protection  other  than  to  have  his  goods  transported 
for  a  reasonable  compensation  ? 

2.  What  changes,  if  any,  have  been  made  by  statute  in  this 
State  touching  the  duties  and  liabilities  of  a  common  carrier  at 
common  law? 

262 


SCOFIELD  V.  KAILWAY  CO.  §  73 

3.  Is  the  contract  made  between  the  defendant  and  the  Stand- 
ard Oil  Company,  and  mentioned  in  the  pleadings,  good  in  law, 
or  is  it  void  on  grounds  of  public  policy  ? 

4.  Can  the  remedy  sought  by  plaintiffs  in  this  case  be  ad- 
ministered by  a  court  of  equity  by  means  of  an  injunction? 

The  District  Court  has  found  that  the  defendant  is  a  con- 
solidated railroad  company  owning  and  operating  a  railroad  ex- 
tending from  Buffalo,  New  York  to  Chicago,  Illinois,  passing 
through  Ohio  and  parts  of  Pennsylvania,  Indiana,  Michigan  and 
Illinois,  with  branches  extending  to  Detroit  and  Grand  Rapids, 
and  that  defendant  is  a  public  corporation  and  a  common  carrier 
in  the  business  of  transporting  persons  and  property  for  hire 
and  reward  over  its  line  and  branches. 

The  defendant  having  acquired  through  its  charter  the  right 
of  eminent  domain  and  the  franchise  to  construct  its  road,  and 
to  demand  and  receive  tolls,  is  to  be  distinguished  from  a  mining 
or  manufacturing  or  other  private  corporation.  By  accepting  its 
charter,  and  claiming  and  exercising  the  peculiar  rights  and 
privileges  enjoyed  by  public  corporations,  and  "being  a  creature 
of  the  law  and  intrusted  with  the  exercise  of  sovereign  power  to 
subserve  public  necessities  and  uses,  the  defendant  is  bound  to 
conduct  its  affairs  in  furtherance  of  the  public  objects  of  its 
creation. ' ' 

The  legal  theory  seems  to  be  that  it  is  the  duty  or  the  right 
of  governments  to  provide  improved  facilities  for  the  public 
travel  and  transportation  at  the  public  expense,  and  this  duty 
has  been  discharged  by  all  civilized  governments.  It  was  found 
that  these  improved  modes  of  travel  and  transportation  could 
not  always  be  provided  by  private  enterprise,  and  that  to  con- 
struct canals,  turnpikes,  railroads,  etc.,  required  the  exercise 
of  the  right  of  eminent  domain,  and  the  powers  of  general  taxa- 
tion. In  the  further  progress  of  events  as  private  wealth  in- 
creased, it  was  found  politic  and  convenient  to  intrust  these 
functions  of  the  government  to  individuals  united  together  as 
public  corporations  under  a  grant  of  the  government;  the  rail- 
road corporation  in  consideration  of  the  franchise  received,  giv- 
ing the  public  the  right  to  use  its  road,  and  subjecting  itself  to 
the  restraint  of  the  government  through  its  legislature  and  judi- 
ciary to  prevent  any  abuse  of  the  powers  so'  granted. 

"While  the  law  affords  railroad  corporations  adequate  and 
complete  protection  in  the  exercise  of  their  chartered  rights, 
it  also  holds  them  to  a  strict  performance  of  the  public  duties 
enjoined  upon  them  as  a  consideration  for  the  rights  and  powers 
thus  granted.  In  cases  of  apparent  confxict  between  the  rights 
and  powers  conferred  and  the  duties  imposed,  the  solution  may 

263 


§  73  EIGHTS  AND  DUTIES  OF  COMMON  CAEEIEE. 

oftentimes  be  rendered  easy  by  regarding  the  admitted  right  of 
public  use  as  the  touchstone  of  judicial  interpretation."  Rail- 
road Comm.  V.  P.  &  0.  C.  R.  Co.,  63  Me.  269-278,  18  Am.  R.  208. 

It  is  because  of  the  fact  that  such  corporations  are  public  cor- 
porations, being  vested  with  a  portion  of  sovereign  power  dele- 
gated to  them  by  the  State,  and  owing  duties  to  the  public,  that 
they  have  been  held  subject  to  the  right  of  mandamus  to  oblige 
them  to  fairly  and  fully  carry  out  the  public  object  of  their  crea- 
tion. Rex  V.  Barker,  3  Burr,  1267;  State  v.  R.  Co.,  29  Conn. 
538 ;  Aug.  &  Ames  Corp.  694. 

It  is  on  the  same  theory  that  acts  of  the  legislature  have  been 
sustained  as  constitutional,  requiring  railroad  corporations  to  es- 
tablish stations  at  particular  places  on  their  roads,  and  to  supply 
reasonable  accommodations  to  the  people  of  the  smaller  localities, 
and  to  do  justice  to  the  different  sections  through  which  their 
railroads  pass.  Commonwealth  v.  Eastern  R.  Co.,  103  Mass.  258, 
4  Am.  Rep.  555. 

The  fact  that  parties  using  the  road  are  required  to  pay  fare 
for  transportation  in  no  way  conflicts  with  the  views  expressed. 

"The  fare  is  the  consideration  for  the  service  performed, 
whether  done  by  the  State  directly,  or  by  a  corporation  under 
a  grant  from  the  State ;  it  is  simply  a  substitute  for  the  tax 
rendered  necessary  when  the  State  builds  and  conducts  railroads 
at  the  public  expense ;  the  corporation  upon  the  payment  of  the 
fare  is  under  the  same  obligation  to  render  the  required  service 
for  the  public,  that  the  State  would  be,  if  railroads  were  free 
and  conducted  by  State  authority.  Nor  does  the  ownership  of 
railroads,  whether  it  be  in  the  State  or  a  private  corporation, 
affect  the  nature  of  their  use,  since  in  either  case  the  function 
to  be  exercised  and  the  uses  to  be  subserved  are  public. ' '  Railr. 
Comm.  V.  P.  &  0.  C.  R.  Co.,  supra,  275,  18  Am.  R.  208. 

' '  In  considering  the  right  of  the  public  to  the  use  of  railroads, 
and  the  public  interest  resulting  from  this  right,  it  should  not 
be  overlooked  that  the  payment  of  fares  is  more  than  compen- 
sated in  general  by  the  reduced  expense  of  travel  and  transpor- 
tation by  this  mode  over  other  means  of  conveyance,  in  addition 
to  the  other  advantages,  public,  private  and  local,  resulting  from 
the  establishment  of  railroads.  *  *  *  This  beneficial  public 
interest  is  intended,  among  others,  to  be  secured  under  the  fran- 
chise granted  to  railroad  corporations;  and  the  public  have  an 
interest  that  this  result  should  be  attained  and  maintained  by 
them."  Railr.  Comm.  v.  P.  &  0.  C.  R.  Co.,  supra,  276-7,  18  Am. 
R.  208. 

A  similar  doctrine  is  stated  by  the  Supreme  Court  of  Penn- 
sylvania:    ''Whenever  a  charter  is  granted  for  the  purpose  of 

264 


SCOFIELD  V.  EAILWAY  CO.  §  73 

constructing  a  railroad,  and  the  corporation  is  clothed  with  the 
power  to  take  private  property  in  order  to  carry  out  the  object, 
it  is  an  inference  of  law  from  the  extent  of  the  power  conferred, 
and  subject-matter  of  the  grant,  that  the  road  is  for  the  public 
accommodation.  The  right  to  take  tolls  is  the  compensation  to 
be  received  for  the  benefits  conferred.  If  the  public  are  en- 
titled to  these  advantages  it  results  from  the  nature  of  the  right 
that  the  benefits  should  be  extended  to  all  alike,  and  that  no 
special  privileges  should  be  granted  to  one  man  or  set  of  men  and 
denied  to  others."    Sandford  v.  Railroad  Co.,  24:  Penn.  St.  378. 

The  learned  Chief  Justice  Beasley,  in  pronouncing  the  judg- 
ment of  the  Supreme  Court  of  New  Jersey,  said:  "In  my  opin- 
ion, a  railroad  company,  constituted  under  statutory  authority, 
is  not  only  by  force  of  its  inherent  nature  a  common  carrier  * 
*  *  but  it  becomes  an  agent  of  the  public  in  consequence  of 
the  powers  conferred  upon  it.  A  company  of  this  kind  is  in- 
vested with  important  prerogative  franchises,  among  which  are 
the  rights  to  build  and  use  a  railway  and  to  charge  and  take 
tolls  and  fares.  These  prerogatives  are  grants  from  the  govern- 
ment, and  public  utility  is  the  consideration  for  them.  Although 
in  the  hands  of  a  private  corporation,  they  are  still  sovereign 
franchises,  and  must  be  used  and  treated  as  such ;  they  must  be 
held  in  trust  for  the  general  good.  If  they  had  remained  under 
the  control  of  the  State,  it  could  not  be  pretended  that  in  the 
exercise  of  them  it  would  have  been  legitimate  to  favor  one  citi- 
zen at  the  expense  of  another.  If  a  State  should  build  and  ope- 
rate a  railroad,  the  exclusion  of  everything  like  favoritism  with 
respect  to  its  use  would  seem  to  be  an  obligation  that  could  not 
be  disregarded  without  violating  natural  equity  and  fundamental 
principles.  *  *  *  In  their  very  nature  and  constitution,  as 
I  view  this  question,  these  companies  become,  in  certain  aspects, 
public  agents,  and  the  consequence  is  they  must  in  the  exercise 
of  their  calling  observe  to  all  men  a  perfect  impartiality."  Mes- 
senger V.  Penn.  R.  Co.,  36  N.  J.  Law,  407,  13  Am.  R.  457. 

"A  railroad  corporation,  in  view  of  its  origin,  objects,  uses 
and  the  control  of  the  government  over  it  is  a  public  corpora- 
tion, though  its  shares  may  be  owned  by  private  individuals.  It 
is  a  governmental  agency  for  public  purposes."  Talcott  v. 
Township  of  Pine  Grove,  1  Flip.  120.  See  also  McDuffee  v.  P. 
&  R.  Co.,  52  N.  H.  430,  13  Am.  R.  72. 

The  defendant's  attorneys  in  their  brief  well  said:  "It  can- 
not be  questioned  that  the  reason  why  a  common  carrier  is  re- 
stricted to  a  reasonable  rate  is  the  same  that  causes  the  limita- 
tion at  common  law  upon  the  rates  charged  by  a  wharfinger 
licensed  under  the  statute.    In  reference  to  a  railroad  company 

265 


§  73  EIGHTS  AND  DUTIES  OF  COMMON  CAEEIEE. 

it  may  be  trul}^  said  that  it  exercises  a  quasi  public  employment. 
While  railroads  are  managed  for  private  benefit,  and  their 
profits  arising  from  their  operation  go  to  individuals,  yet  they 
are  treated  as  merely  a  public  convenience  and  agency  in  the 
matter  of  State  and  inter-State  commercial  intercourse."  And 
see  Erie  &  N.  E.  Railroad  v.  Casey,  26  Penn.  St.  287. 

The  above  authorities  abundantly  show  that  railroad  com- 
panies are  common  carriers,  receiving  from  the  State  a  delega- 
tion of  a  portion  of  its  sovereign  powers  for  the  public  good. 
That  being  public  agents,  and  in  the  place  and  stead  of  the  gov- 
ernment exercising  public  duties,  they  are  therefore  subject  to 
the  legislative  and  judicial  authority  to  correct  the  abuse  of 
their  privileges  and  powers. 

The  next  question  is,  whether  these  quasi  public  agents  are  re- 
quired to  treat  all  citizens  and  customers  alike  as  to  terms  upon 
which  they  will  transport  freight. 

It  is  claimed  by  the  defendant  that  it  is  not  bound  to  carry 
freights  for  all  freighters  at  the  same  rate,  but  its  duty  is  fully 
discharged  if  it  carries  for  all,  charging  none  more  than  a  reas- 
onable rate.  On  the  contrary,  the  plaintiffs  contend,  that  at 
least  under  the  facts  of  this  ease,  they  are  entitled  to  the 
same  rates  as  their  more  favored  rival.  They  allege  and  the 
court  find  that  they  have  been  and  are  carrying  on  in  a  large 
way,  at  Cleveland,  Ohio,  the  business  of  refining  crude  petroleum, 
and  selling  it  in  the  region  reached  by  the  defendant's  rail- 
road, branches  and  connecting  lines.  That  they  have  a  large 
capital  so  employed,  and  have  established  a  large  and  profitable 
trade  throughout  such  territory.  That  their  refinery  cost  about 
$70,000,  and  that  plaintiffs  have  a  refining  capacity  of  about 
150,000  barrels  per  year.  And  it  is  contended,  and  the  facts 
would  seem  to  establish,  that  the  admitted  difference  of  ten 
cents  a  barrel  between  the  rate  charged  plaintiffs  and  that 
charged  the  Standard  Oil  Company  would  make  to  the  plaintiffs, 
if  there  was  no  discrimination  practiced,  a  yearly  sum  of  $15,000 
on  the  output  of  plaintiff,  or  more  than  twenty-one  per  cent  on 
the  capital  used  in  their  business.  That  the  Standard  Oil  Com- 
pany is  and  has  been  engaged  in  the  same  business  at  Cleveland 
and  elsewhere,  and  has  manufactured  and  shipped  nine-tenths 
of  all  the  oils  manufactured  at  and  shipped  from  Cleveland, 
and  that  by  the  terms  of  an  agreement  entered  into  in  1875,  the 
defendant  contracted  with  the  Standard  Oil  Company  that  in 
consideration  of  the  promise  of  the  company  to  ship  all  their 
product  of  petroleum  over  the  defendant's  railroad,  it  under- 
took to  ship  the  same  at  an  average  rate  of  about  ten  cents  per 
barrel  below  its  published  rates;  and  that  plaintiffs  were  com- 

266 


SCOFIELD  V.  RAILWAY  CO.  §  73 

pelled  to  pay  at  the  same  time  according  to  the  published  rates. 
Plaintiffs  claim  that  by  this  discrimination  in  favor  of  the 
Standard  Oil  Company,  the  latter  are  afforded  an  unfair  dis- 
crimination and  advantage,  and  can  put  their  product  on  the 
market  at  a  less  price  than  the  plaintiff's  can  aft'ord,  and  thereby 
their  profits  are  reduced;  and  by  this  unlawful  discrimination 
in  favor  of  the  Standard  Oil  Company,  the  defendant  is  inflict- 
ing upon  them  great  and  irreparable  damage,  and  renders  it 
impossible  to  successfully  compete  with  that  company  in  the  mar- 
ket, and  thereby  the  business  and  trade  of  plaintiff's  is  being 
injured  and  destroyed.  It  will  be  observed  that  the  gist  of 
plaintiff' 's  contention  is  not  so  much  that  the  latter  are  charged 
a  rate  of  compensation  for  transportation  unreasonable  in  itself, 
as  that  by  charging  a  lower  rate  to  their  more  favored  com- 
petitor, the  latter  is  enabled  to  and  is  supplying  the  market  at 
a  price  with  which  the  plaintiff's  cannot  compete,  and  thus  driv- 
ing them  out  of  the  market  and  destroying  the  business  and 
trade  they  have  built  up.  One  of  the  questions  at  issue  between 
the  parties  is:  What  was  the  doctrine  of  the  common  law  on 
the  question  of  the  compensation  of  a  common  carrier?  Could 
the  freighter  require  any  thing  more  than  that  he  be  charged 
no  more  than  a  reasonable  compensation,  or  could  he  demand 
and  have  his  goods  transported  at  an  equal  rate  with  the  favored 
customer  ? 

In  many  cases  it  has  been  held  that  the  customer  was  only 
entitled  to  have  his  goods  shipped  at  a  reasonable  rate,  and  not 
necessarily  at  an  equal  rate  with  others;  and  that  he  was  not 
interested  in  the  matter  that  somebody  else  was  charged  less. 
Or  in  the  incisive  language  of  Crompton,  J.,  to  counsel  in  an 
English  case :  ' '  The  charging  another  person  too  little  is  not 
charging  you  too  much." 

The  question,  so  far  as  it  related  to  railroads,  w^as  settled  by 
statute  in  England  shortly  after  their  introduction  there;  and 
under  the  "equality  clause"  of  the  English  statutes  railroad 
companies  were  bound  to  charge  equally  to  all  persons  in  respect 
to  all  goods  under  like  circumstances.  Pickford  v.  Grand  Junc- 
tion R.  Co.,  10  M.  &  W.  399;  Baxendale  v.  London  &  South- 
western R.  Co.,  L.  R.,  1  Ex.  137 ;  London,  etc.,  R.  Co.  v.  Evershed, 
3  App.  Cas.  1029,  26  W.  R.  863. 

And  by  17  and  18  Vict.,  ch.  31,  §§  2,  3  and  6,  the  Court  of 
Common  Pleas  was  empowered  to  restrain  by  injunction  any  rail- 
way or  canal  company  from  giving  undue  or  unreasonable 
preference  to  any  particular  person  or  description  of  traffic.  See 
notes  to  Coggs  v.  Bernard,  1  Smith  L.  C.  369.  So  for  a  long 
period  of  time  the  English  courts  have  had  no  occasion  to  exam- 

267 


§  73  EIGHTS  AND  DUTIES  OF  COMMON  CAERIEE. 

ine  the  condition  of  the  common  law  upon  the  subject  independ- 
ent of  the  statute. 

In  C.  &  A.  R.  Co.  V.  People,  67  111.  11,  17,  16  Am.  R.  599, 
Lawrence,  C.  J.,  affirms:  "Another  perfectly  well  settled  rule 
of  the  common  law  in  regard  to  common  carriers  is,  that  they 
shall  not  exercise  any  unjust  and  injurious  discrimination  be- 
tween individuals  in  their  rates  of  toll.  *  *  *  While  the 
law  now  imposes,  and  always  has  imposed  upon  individuals 
exercising  the  vocation  of  a  common  carrier,  the  obligation  of 
rendering  service  to  all  persons  without  injustice  to  any,  how 
utterly  unreasonable  it  is  to  claim  that  a  corporation  is  to  be 
permitted  to  discriminate  in  its  tolls  at  its  own  discretion  and 
without  regard  to  justice,"  etc. 

In  discussing  the  English  "equity  statute"  before  adverted 
to,  Beasley,  C.  J.,  pronouncing  the  opinion  of  the  Supreme 
Court  of  New  Jersey,  says:  "But  the  courts  of  Pennsylvania 
repeatedly  declared  that  this  act  was  but  declaratory  of  the 
doctrine  of  the  common  law.  *  *  *  In  a  more  recent  de- 
cision, Mr.  Justice  Strong  says  that  the  special  provisions  which 
are  sometimes  inserted  in  railroad  charters,  in  restraint  of  undue 
preferences,  are  'but  declaratory  of  what  the  common  law  now 
is.'  This  is  the  view  which  for  reasons  already  given,  I  deem 
correct."  Messenger  v.  Penn.  R.  Co.,  36  N.  J.  Law,  407-412,  13 
Am.  R.  457. 

In  some  of  the  cases  it  is  announced  that  the  question  of 
whether  the  law  requires  the  common  carrier  to  transport  goods 
upon  equal  terms  at  all,  or  whether  it  only  requires  that  the  rate 
shall  be  reasonable,  but  not  necesarily  equal  to  all,  has  been  dif- 
ferently determined  by  the  courts  of  England  and  America. 
Ragan  v.  Aiken,  9  Lea,  609,  42  Am.  Rep.  684. 

But  be  that  as  it  may,  the  tendency  and  undoubted  weight 
of  authority  is  in  favor  of  the  doctrine  that  a  common  carrier  is 
charged  with  quasi  public  duty  to  transport  merchandise  on 
equal  terms  for  all  parties,  where  the  carrying  for  some  shippers 
at  a  lower  price  than  for  others  will  create  monopoly  by  injuring 
or  destroying  the  business  of  those  less  favored. 

"An  agreement  by  a  railroad  company  to  carry  goods  for  cer- 
tain persons  at  a  cheaper  rate  than  they  will  carry  under  the 
same  conditions  for  others,  is  void  as  creating  an  illegal  prefer- 
ence."   Messenger  v.  Penn.  R.  Co.,  supra. 

The  court  also  cite  and  make  extracts  from  McDuffee  v.  Rail- 
road, supra;  Carton  v.  B.  &  E.  R.  Co.,  1  B.  &.  S.  112 ;  Sandford 
V.  Railroad,  24  Penn.  St.  378;  Shipper  v.  Railroad,  47  Penn. 
St.  338;  Audenried  v.  Railroad,  68  Penn.  St.  370,  8  Am.  Rep. 
195 ;  N.  E.  Ex.  Co.  v.  Railroad,  57  Me.  188,  2  Am.  R.  31 ;  Vincent 

268 


SCOFIELD  V.  RAILWAY  CO.  §  73 

V.  Railroad,  49  111,  33;  Chicago,  etc.,  Ry.  Co.  v.  People,  56  111. 
365,  8  Am.  Rep.  690;  Dinsmore  v.  Railroad,  2  Fed.  Rep.  465; 
Crawford  v.  Wick,  18  Ohio  St.  190,  98  Am.  D.  103;  Cent. 
Ohio  Salt  Co.  v.  Guthrie,  35  Ohio  St.  666 ;  Great  West.  Ry.  Co. 
V.  Sutton,  4  Eng.  &  Ir.  App.  226. 

Five  cases,  reported  in  10  Fed.  Rep.  210,  were  decided  before 
Justice  Miller  and  Judges  McCrary  and  Treat,  arising  in  the 
various  Circuit  Courts  of  the  United  States  for  Mississippi,  Ar- 
kansas, Kansas  and  Colorado;  and  Justice  JMiller  on  p.  214, 
states  as  the  fifth  point  in  his  opinion: 

"I  am  of  the  opinion  that  it  is  the  duty  of  every  railroad 
company  to  provide  such  conveyances  by  special  cars  or  other- 
wise, *  *  *  as  are  required  for  the  safe  and  proper  trans- 
portation of  this  express  matter  on  their  roads,  and  that  the  use 
of  these  facilities  should  be  extended  on  equal  terms  to  all  who 
are  actually  and  usually  engaged  in  the  express  business. ' ' 

The  case  of  Hays  v.  Pennsylvania  Company,  12  Fed.  Rep.  309, 
decided  by  Baxter,  J.,  in  the  Circuit  Court  of  the  United  States 
for  the  northern  district  of  Ohio,  is  important  in  respect  to  one 
element  in  this  case.  The  defendant  in  the  case  at  bar  claims 
that  it  was  proper  to  enter  into  the  contract  it  did  with  the 
Standard  Oil  Company,  on  account  of  the  very  large  amount 
of  freightage  that  company  annually  furnishes,  and  that  it  was 
lawful  to  discriminate  in  their  favor  on  that  account.  The  plain- 
tiffs in  that  case  had  been  engaged  for  several  years  in  mining 
and  shipping  coal  from  Salineville,  and  the  defendant's  railroad 
furnished  them  their  only  means  of  getting  their  coal  to  mar- 
ket. The  railroad  company  discriminated  in  favor  of  every 
shipper  who  shipped  five  thousand  tons  or  over,  and  the  dis- 
crimination was  from  thirty  to  seventy  cents  per  ton,  graduated 
by  the  amount  shipped. 

Plaintiffs  were  required  to  and  did  under  the  discrimination 
pay  a  higher  rate  than  their  more  favored  competitors.  They 
brought  suit  to  recover  for  the  discrimination,  and  under  the  in- 
structions of  the  trial  judge  the  jury  returned  a  verdict  for 
plaintiffs. 

The  judge  on  a  motion  for  a  new  trial  said :  ' '  The  defendant 
is  a  common  carrier  by  rail.  Its  road,  though  owned  by  the 
corporation,  was  nevertheless  constructed  for  public  uses,  and 
is  in  a  qualified  sense  a  public  highway.  Hence  everybody  con- 
stituting a  part  of  the  public,  for  whose  benefit  it  was  author- 
ized, is  entitled  to  an  equal  and  impartial  participation  in  the 
use  of  the  facilities  it  is  capable  of  affording.     *     *     * 

The  discrimination  complained  of  rested  exclusively  on  the 
amount  of  freight  supplied  by  the  respective  shippers  during 

269 


§  73  RIGHTS  AND  DUTIES  OF  COMMON  CAREIEE. 

the  year.  Ought  a  discrimination  resting  exclusively  on  such  a 
basis  to  be  sustained?  If  so,  then  the  business  of  the  country 
is  in  some  degree  subject  to  the  will  of  railroad  officials;  for  if 
one  man,  engaged  in  mining  coal  and  dependent  on  the  same  rail- 
road for  transportation  to  the  same  market,  can  obtain  trans- 
portation thereof  at  from  twenty-five  to  fifty  cents  per  ton  less 
than  another  competing  with  him  in  business,  solely  on  the 
ground  that  he  is  able  to  furnish  and  does  furnish  the  larger 
quantity  for  shipment,  the  small  operator  will,  sooner  or  later, 
be  forced  to  abandon  the  unequal  contest,  and  surrender  to  his 
more  opulent  rival.  If  the  principle  is  sound  in  its  application 
to  rival  parties  engaged  in  mining  coal,  it  is  equally  applicable 
to  merchants,  manufacturers,  millers,  dealers  in  lumber  and 
grain,  and  to  everybody  else  interested  in  any  business  requir- 
ing any  considerable  amount  of  transportation  by  rail;  and  it 
follows  that  the  success  of  all  such  enterprises  would  depend  as 
much  on  the  favor  of  railroad  officials  as  upon  the  energies  and 
capacities  of  the  parties  prosecuting  the  same.  It  is  not  difficult 
with  such  a  ruling  to  forecast  the  consequences.  The  men  who 
control  railroads  would  be  quick  to  appreciate  the  power  with 
which  such  a  holding  would  invest  them,  and  it  may  be  not  slow 
to  make  the  most  of  their  opportunities;  and  perhaps  tempted 
to  favor  their  friends  to  the  detriment  of  their  personal  or  polit- 
ical opponents ;  or  demand  a  division  of  the  profits  realized  from 
such  collateral  pursuits  as  could  be  favored  or  depressed  by  dis- 
criminations for  or  against  them ;  or  else  seeing  the  augmented 
power  of  capital  organize  into  overshadowing  combinations  and 
extinguish  all  petty  competition,  monopolize  business,  and  dic- 
tate the  price  of  coal  and  every  other  commodity  to  consumers. 
We  say  these  results  might  follow  the  exercise  of  such  a  right  as 
is  claimed  for  railroads  in  this  case.  But  we  think  no  such  power 
exists  in  them ;  they  have  been  authorized  for  the  common  benefit 
of  every  one,  and  cannot  be  lawfully  manipulated  for  the  ad- 
vantage of  any  class  at  the  expense  of  any  other.  Capital  needs 
no  such  extraneous  aid.  It  possesses  inherent  advantages  which 
cannot  be  taken  from  it.  But  it  has  no  just  claim  by  reason  of 
its  accumulated  strength,  to  demand  the  use  of  the  public  high- 
ways of  the  country,  constructed  for  the  common  benefit  of  all, 
on  more  favorable  terms  than  are  accorded  to  the  humblest  of 
the  land ;  and  a  discrimination  in  favor  of  parties  furnishing  the 
largest  quantity  of  freight,  and  solely  on  that  ground  is  a 
discrimination  in  favor  of  capital,  and  is  contrary  to  a  sound 
public  policy,  violative  of  that  equality  of  right  guaranteed  to 
every  citizen,  and  a  wrong  to  the  disfavored  party,  for  which 
the  courts  are  competent  to  give  redress." 

270 


SCOFIELD  V.  RAILWAY  CO.  §  73 

The  District  Court,  in  their  finding  101/2,  state  that  ship 
ment  by  the  car-load  was  the  manner  in  which  nearly  all  busi- 
ness was  done.  That  on  the  request  of  either  party  to  furnish 
cars,  the  defendant  had  them  switched  to  the  refineries,  and  after 
being  loaded  they  were  switched  back  and  placed  on  defendant's 
tracks  for  shipment  on  its  road. 

The  manner  of  making  shipments  for  plaintiffs  and  for  the 
Standard  Oil  Company  was  precisely  the  same,  and  the  only 
thing  to  distinguish  the  business  of  the  one  from  the  other  was 
the  aggregate  yearly  amounts  of  freight  shipped.  We  adopt  the 
reasoning  of  Baxter,  J.,  as  the  better  law,  and  hold  that  a  dis- 
crimination in  the  rate  of  freights  resting  exclusively  on  such  a 
basis  ought  not  to  be  sustained.  The  principle  is  opposed  to 
sound  public  policy.  It  would  build  up  and  foster  monopolies, 
add  largely  to  the  accumulated  power  of  capital  and  money,  and 
drive  out  all  enterprise  not  backed  by  overshadowing  wealth. 
With  the  doctrine  as  contended  for  by  the  defendant  recognized 
and  enforced  by  the  courts,  what  will  prevent  the  great  interests 
of  the  north-west,  or  the  coal  and  iron  interests  of  Pennsylvania, 
or  any  of  the  great  commercial  interests  of  the  country,  bound 
together  by  the  powder  and  influence  of  aggregate  wealth,  and 
in  league  with  the  railroads  of  the  land,  from  driving  to  the 
wall  all  private  enterprise  struggling  for  existence,  and  with  an 
iron  hand  thrusting  back  all  but  themselves  ? 

The  defendant  can  derive  no  benefit  or  advantage  in  this  case 
from  its  contract  with  the  Standard  Oil  Company,  and  its  dis- 
crimination cannot  be  upheld  because  of  the  existence  of  the 
same. 

We  have  already  held  that  the  contract  is  opposed  to  public 
policy  and  void.  (Citing  Crawford  v.  Wick,  18  Ohio  St.  190, 
98  Am.  D.  103,  and  making  extracts.) 

Now  let  us  look  into  this  contract  between  defendant  and  the 
Standard  Oil  Company,  and  see  just  what  it  is  as  shown  by  the 
pleadings  and  findings  in  the  case,  and  its  aim  and  purpose  as 
shown  by  the  subsequent  acts  of  the  parties  to  it.  Defendant 
having  tariff  rates  for  the  public  generally,  in  1875,  contracted 
with  the  Standard  Oil  Company,  that  in  consideration  of  the 
company  giving  to  the  defendant  its  entire  freight  business  in 
the  products  of  petroleum,  they  would  transport  such  freights 
for  the  company  at  certain  rates  dependent  upon  the  fluctuation 
of  the  rates,  but  about  ten  cents  per  barrel  cheaper  than  for  any 
other  customers ;  and  the  defendant  not  only  agreed  and  under- 
took to  carry  for  the  company  at  the  reduced  rate,  but  also  that 
they  would  not  ship  for  any  others  at  less  than  the  full  tariff 
rate,  and  if  they  did  it  was  understood  that  the  Standard  Oil 

271 


§  73  EIGHTS  AND  DUTIES  OF  COMMON  CAEEIEE. 

Company  would  take  from  the  defendant  all  its  business  and 
deprive  it  of  all  its  "patronage.  The  understanding  was  to  keep 
the  price  down  for  the  favored  customer,  but  up  for  all  others, 
and  the  inevitable  tendency  and  effect  of  this  contract  was  to 
enable  the  Standard  Oil  Company  to  establish  and  maintain  an 
overshadowing  monopoly,  to  ruin  all  other  operators  and  drive 
them  out  of  business  in  all  the  region  supplied  by  the  defendant 's 
road,  its  branches  and  connecting  lines.  The  active  participa- 
tion of  the  defendant,  in  the  unlawful  purposes  of  the  Standard 
Oil  Company,  is  shown  by  the  sequel.  In  1883,  the  road  of  the 
N.  Y.,  C.  &  St.  L.  R.  Co.  was  constructed.  It  might  become  an 
active  competitor  for  this  business  of  transporting  petroleum 
for  customers  other  than  the  Standard  Oil  Company.  It  might 
establish  such  a  tariff  of  rates  that  other  operators  in  oil  might 
successfully  compete  with  the  Standard  Oil  Company.  If  how- 
ever the  contract  of  1875  was  in  force,  the  defendant  had  an  ex- 
clusive right  to  all  the  freights  of  that  company.  Having 
that  exclusive  right  to  do  all  the  carrying  for  the  company,  the 
District  Court  found,  "that  for  the  purpose  of  effectually  se- 
curing at  least  the  greater  part  of  said  trade,  the  defendant  on 
the  completion  of  the  N.  Y.,  C.  &  St.  L.  Railway,  a  competing 
line  from  Cleveland  to  the  west,  in  the  year  1883,  entered  into 
a  traffic  arrangement  with  it  giving  to  it  a  portion  of  the  ship- 
ments of  said  Standard  Oil  Company  west,  on  a  condition  of 
its  uniting  with  it  in  carrying  out  of  such  understanding  as  to 
reduced  rates  to  said  Standard  Company,  which  arrangements 
still  exist."  How  peculiar?  The  defendant,  by  a  contract  made 
in  1875,  was  entitled  to  all  the  freights  of  the  Standard  Oil  Com- 
pany, and  yet  say  the  District  Court,  "for  the  purpose  of  se- 
curing the  greater  part  of  said  trade,"  they  entered  into  a  con- 
tract to  divide  with  the  new  railroad,  if  the  latter  would  only 
help  to  keep  the  rates  down  for  the  Standard  and  up  for  every- 
body eise. 

Such  a  contract  so  carried  out  was,  in  the  opinion  of  this 
court,  not  only  contrary  to  a  sound  public  policy,  but  to  !'he  lax 
demands  of  commercial  honesty  and  ordinary  methods  of  busi- 
ness. 

Defendant's  counsel  in  his  brief  affirms:  "We  do  not  believe 
a  railroad  company  should  act  unjustly ;  that  it  should  favor  one 
man  more  than  another;  that  it  should  favor  one  place  more 
than  another  place,  or  that  it  should  crush  out  one  person  for 
the  purpose  of  advancing  the  fortunes  of  another."  We  affirm 
that  admitted  doctrine,  and  upon  it  declare  that  contract  void. 

The  cases  before  referred  to,  New  England  Express  Company 
V.  Maine  Central  Railroad  Company ;  Sanford  v.  Railroad  Com- 

272 


SCOFIELD  V.  EAILWAY  CO.  §  73 

pany ;  Messenger  v.  Pennsylvania  Co.,  all  enforce  and  emphasize 
the  doctrine  that  prevents  the  defendant  from  in  any  way  in- 
trenching itself  behind  its  arrangement  vs^ith  the  Standard  OiJ 
Company.  Neither  of  the  parties  to  it  can  enforce  its  terms 
against  the  other.    It  is  void  in  law,  and  a  void  thing  is  no  thing. 

Neither  does  the  fact  found  by  the  District  Court,  that  the 
contract  "was  not  made  or  continued  with  any  intention  on  the 
part  of  the  defendant  to  injure  the  plaintiffs  in  any  manner," 
make  any  difference  in  the  case.  The  plaintiffs  were  not  doing 
business  in  1875,  when  the  contract  was  entered  into,  and  of 
course  it  was  not  made  to  injure  them  in  particular.  If  a  man 
rides  a  dangerous  horse  into  a  crowd  of  people,  or  discharges 
loaded  firearms  among  them,  he  might  with  the  same  propriety, 
select  the  man  he  injures,  and  say  he  had  no  intention  of  wound- 
ing him.  And  yet  the  law  holds  him  to  have  intended  the  prob- 
able consequences  of  his  unlawful  act  as  fully  as  if  purposely 
directed  against  the  innocent  victim,  and  punishes  him  accord- 
ingly. And  this  contract,  made  to  build  up  a  monopoly  for  the 
Standard  Oil  Company  and  drive  its  competitors  from  the  field, 
is  just  as  unlawful  as  if  its  provisions  had  been  aimed  directly 
against  the  interests  of  the  plaintiffs. 

The  effect  of  the  provisions  of  the  Ohio  statutes  upon  the  case 
at  bar  do  not  seem  to  have  been  much  relied  on  by  plaintiff's 
counsel.  I  think  they  can  at  least  be  looked  to  as  indicative  of 
the  tendency  and  direction~of  the  legislative  policy  of  the  State 
upon  questions  we  are  investigating. 

(Omitting  this  consideration.) 

The  defendant  in  this  case  relies  for  its  defense  not  only  upon 
the  doctrine  so  frequently  found  in  the  books  declaring  that  com- 
mon carriers  are  to  be  held  to  a  reasonable  compensation,  but  not 
necessarily  an  equal  compensation,  but  particularly  on  the  cases 
of  Johnson  v.  Pensacola  &  Perdito  R.  Co.,  16  Fla.  623, 
26  Am.  Rep.  731,  and  Ex  parte  Benson,  18  S.  C.  38,  44  Am. 
R.  564. 

In  the  latter  case  a  petition  was  filed  against  the  receiver  of 
a  railroad  to  compel  him  to  pay  to  a  shipper  out  of  the  "re- 
ceiver's fund"  an  amount  that  had  been  promised  as  a  draw- 
back to  procure  his  custom  as  a  cotton  shipper.  The  receiver 
contested  the  claim  on  the  ground  that  the  discrimination  was 
unlawful,  but  no  person  was  shown  to  have  been  injured  by,  and 
no  third  person  was  complaining  of  the  discrimination.  Under 
that  state  of  facts  the  shipper  had  judgment  for  his  drawback. 

In  the  Florida  case  the  discrimination  w^as  made  in  favor  of  a 
shipper  of  lumber  who  under  peculiar  circumstances  had  fur- 
nished the  railroad  company  a  sum  of  money  to  complete  its  road 
18  273 


§  73  EIGHTS  AND  DUTIES  OF  COMMON  CAKRIER. 

and  was  to  have  the  loan  repaid  by  freight  at  a  reduced  rate. 
Complaints  of  loss  and  injury  were  made  by  another  shipper, 
but  there  was  no  proof  or  no  satisfactory  evidence  to  show  the 
complaining  shipper  was  injured  in  his  business  by  the  lower  rate 
given  to  the  other  shipper.  In  both  these  cases  reliance  is  placed 
on  the  doctrine  that  discrimination  is  not  necessarily  unlawful, 
and  that  all  the  freighter  is  entitled  to  is  a  reasonable  rate  not 
necessarily  equal  to  all ;  and  in  the  absence  of  any  statute  to  the 
contrary,  we  are  not  inclined  to  question  the  correctness  of  these 
decisions.  But  if  we  should  regard  them  as  contrary  to  the  doc- 
trine we  have  indorsed,  we  would  only  say  they  would  thus  be 
overcome  by  an  overwhelming  weight  of  authority. 

I  think  however  that  all  the  cases  that  have  been  referred  to 
on  their  facts  might  be  harmonized  by  observing  the  distinction 
so  often  alluded  to,  that  is  to  say,  that  as  between  a  consignor 
and  the  common  carrier,  where  no  other  reason  intervenes  to  en- 
graft an  exception  on  the  rule,  all  the  consignor  can  demand 
of  the  common  carrier  is,  that  his  goods  shall  be  carried  at  a 
reasonable  rate,  not  necessarily  at  an  equal  rate  with  all  others. 
But  when  the  reduced  rate  is  either  intended  to,  or  has  a  nat- 
ural tendency  to  injure  the  plaintiff  in  his  business  and  destroy 
his  trade,  then  a  necessary  exception  is  engrafted  on  the  more 
general  rule,  and  the  plaintiff  has  then  the  right  to  insist  that 
rates  to  all  be  made  the  same  for  goods  shipped  "under  like  cir- 
cumstances." We  can  perhaps  fully  agree  with  defendant's 
counsel,  and  with  what  he  says  in  his  brief : 

"The  important  point  to  every  freighter  is  that  the  charge 
shall  be  reasonable,  and  a  right  of  action  will  not  exist  in  favor 
of  any  one,  unless  it  be  shown  that  unreasonable  inequality  has 
been  made  to  his  detriment. ' ' 

In  the  Florida  case,  supra,  the  court  say,  "most  of  the  cases 
treat  the  common-law  rule  strictly  as  between  the  parties,  and 
without  comparison  as  to  the  charges  against  others." 

The  double  aspect  in  which  a  case  of  discrimination  is  to  be 
viewed  is  well  stated  in  the  case  of  St.  L.,  A.  &  T.  H.  R.  Co.  v. 
Hill,  14  Bradw.  579,  by  BxVkee,  J.:  "The  statement,  one  is  a 
common  carrier,  ex  vi  termini,  imports  a  duty  to  the  public,  and  a 
corresponding  legal  right  in  the  public;  a  right  common  to  all. 
One  of  the  duties  imposed  upon  the  common  carrier  is,  that  he  is 
bound  to  carry  for  a  reasonable  remuneration,  and  is  not  al- 
lowed to  make  unreasonable  and  excessive  charges.  He  cannot, 
like  a  merchant  or  mechanic,  consult  his  pleasure  or  caprice  in 
the  conduct  of  his  business,  and  cannot  even  by  special  agree- 
ment receive  an  excessive  and  extortionate  price  for  his  services. 
Another  duty  imposed  on  him  is  to  make  no  unjust,  injurious,  or 

274 


SCOFIELD  V.  EAILWAY  CO.  §  73 

arbitrary  discriminations  between  individuals  in  his  dealings 
with  the  public.  The  right  to  the  transportation  services  of 
the  carrier  is  a  common  right  belonging  to  every  one  alike. ' ' 

Of  a  like  tenor  and  effect  is  Ragan  v.  Aiken,  supra,  where  the 
question  as  to  statutory  regulation  and  the  rules  of  the  common 
law  were  before  the  court.  The  railroad  company  or  its  man- 
ager, to  induce  parties  doing  business  in  a  particular  locality, 
and  who  could  send  by  a  different  route,  offered  to  carry  their 
goods  for  fifteen  cents  per  one  hundred.  They  accepted  the 
proposition  and  shipped  accordingly.  The  complainants  were 
charged  more,  as  were  the  balance  of  the  public  along  the  line  of 
the  road.  They  charged  that  this  discrimination  was  illegal,  and 
as  in  this  case,  prayed  an  injunction. 

(Omitting  extracts.  It  was  held  that  only  unreasonable  ine- 
qualities were  unlawful.) 

The  doctrine  here  formulated  will,  in  my  opinon,  reconcile  all 
the  cases  upon  their  facts  (though  not  perhaps  all  the  judges 
have  said  in  them),  and  make  them  consistent. 

The  question  further  presented  is,  if  the  plaintiffs  have  a  right 
to  relief,  can  they  come  into  a  court  of  equity  and  obtain  it  by 
the  extraordinary  remedy  of  injunction;  and  a  further  question 
is  proposed  by  the  District  Court,  whether  section  3373  of  the 
Eevised  Statutes  was  intended  to  apply  to  cases  like  the  present, 
and  if  so,  whether  under  it  there  is  any  authority  for  the  relief 
of  injunction.  Waiving  the  first  question  for  the  present,  we 
affirm  the  law  to  be  that  if  the  right  of  the  plaintiffs  existed  at 
common  law  to  relief  by  injunction,  the  enactment  of  section 
3373,  if  that  section  applies  to  the  case  at  all,  affords  only  a 
cumulative  remedy,  and  that  such  a  remedy  by  statute  would  in 
no  wise  take  away  the  remedy  at  common  law. 

So  independent  of  the  statute,  we  proceed  to  inquire  whether 
the  plaintiff  has  a  remedy  by  injunction.  In  the  case  of  Sand- 
ford  v.  R.  Co.,  supra,  and  C.  &  A.  R.  Co.  v.  People,  supra,  relief 
was  sought  and  afforded  by  injunction. 

In  the  case  of  McDuffee  v.  Railroad,  supra,  the  court  say,  p. 
451 :  ' '  There  might  be  cases  where  the  discrimination  would  be 
injurious;  in  such  cases  it  would  be  actionable.  There  might 
be  cases  where  the  remedy  by  civil  suit  for  damages  at  common 
law  would  be  practically  ineffectual,  on  account  of  the  difSculty 
of  proving  large  damages,  or  the  incompetence  of  a  multiplicity 
of  such  suits  to  abate  a  continual  grievance,  or  for  other  reasons ; 
in  such  cases  there  would  be  a  plain  and  adequate  remedy,  where 
there  ought  to  be  one,  by  the  re-enforcing  operation  of  an  in- 
junction, or  by  indictment,  information,  or  other  common,  fa- 
miliar, and  appropriate  course  of  law. ' '    See  also  1  Pomeroy  Eq. 

275 


§  73  EIGHTS  AND  DUTIES  OF  COMMON  CAEEIEE. 

254,  255 ;  Dodge  v.  Gardiner,  31  N.  Y.  239 ;  Third  Ave.  R.  Co. 
V.  New  York,  54  N.  Y.  159 ;  Woods  v.  Monroe,  17  Mich.  238. 

We  think  the  authorities  abundantly  show  that  in  a  case  like 
the  one  at  bar  the  plaintiffs  can  seek  relief  by  injunction,  and 
that  it  is  an  appropriate  method  to  determine  the  rights  of  the 
parties  here  without  first  resorting  to  an  action  at  law.  The 
plaintiffs  have  a  manufacturing  capacity  of  150,000  barrels  per 
year.  Shall  they  be  compelled  to  bring  a  separate  action  for 
each  car-load?  What  number  of  suits  would  it  require?  Are 
the  damages  of  plaintiffs  for  loss  of  profits  susceptible  of  easy 
proof,  or  even  capable  of  any  exact  estimation?  We  think  the 
plaintiffs  have  a  clear  and  undoubted  right  to  come  into  a  court 
of  equity  and  have  the  rights  of  the  parties  determined  in  a  sin- 
gle action. 

A  further  question  is  presented,  whether  the  decree  for  plain- 
tiffs should  be  limited  to  and  enforced  only  in  this  State,  or  shall 
it  extend  to  and  be  enforced  against  the  defendant  at  all  points 
reached  by  defendant's  railroad,  its  branches  and  connecting 
lines?  The  District  Court  finds  that  the  defendant  is  a  consoli- 
dated company,  its  lines  of  roads  extending  from  Buffalo  to  Chi- 
cago, and  extending  to  various  points  in  Pennsylvania,  New 
York,  Ohio,  Indiana,  Michigan  and  Illinois.  It  is  an  artificial 
person,  and  the  same  person  in  all  this  territory,  and  this  court 
has  acquired  jurisdiction  of  the  person  of  the  corporation,  and 
the  right  to  enforce  all  proper  orders  against  it. 

A  similar  question  was  determined  by  the  Supreme  Court  of 
New  Hampshire  in  McDuffee  v.  Portland  and  Rochester  R.  Co., 
supra. 

That  was  an  action  brought  in  the  courts  of  New  Hampshire 
for  an  unreasonable  discrimination  practiced  on  that  part  of  the 
railroad  situate  in  the  State  of  Maine,  and  on  demurrer  it  was 
claimed  the  action  could  not  be  sustained,  because  the  acts  com- 
plained of  happened  in  the  State  of  Maine. 

(Omitting  extracts  holding  that  the  court  had  jurisdiction  of 
the  whole  case.) 

The  railroad  is  an  entirety,  whether  within  the  State  or  with- 
out, and  the  artificial  person,  by  the  acts  of  the  several  States 
authorizing  consolidation,  has  been  created  one,  and  not  two  or 
more;  and  no  reason  is  perceived  why  it  may  not  be  dealt  with 
by  the  courts  of  either  State  that  has  procured  jurisdiction. 

This  artificial  person  not  only  holds  itself  out,  but  does  make 
contracts  for  the  transportation  of  freight  over  its  connecting 
lines  as  well  as  its  own  line,  and  it  makes  rates  to  points  only 
reached  by  connecting  lines.  No  reason  is  perceived  why  it  should 
not  be  ordered  to  make  no  discriminations  to  the  injury  of  plain- 

276 


COOK  V.  CHICAGO,  E.  I.  AND  PACIFIC  E.  E.  CO.    §§  73,  74 

tiffs  in  its  rates  to  points  thus  reached.  Of  course  it  may  at  any 
time  refuse  to  make  any  rates  beyond  its  own  lines,  but  if  it 
makes  rates  to  points  on  connecting  lines,  the  rates  should  be 
equal  to  all.  The  order  of  the  court  is  that  the  defendant  be  re- 
strained, as  prayed  for  in  plaintiff's  petition. 

Judgment  accordingly. 

Compare  with  this  Cleveland  etc.  Railway  Co.  v.  Closser,  126 
Ind.  348 ;  25  N.  E.  R.  159 ;  22  Am.  St.  R.  593,  and  Cook  v.  Rail- 
way Co.,  §  74  post. 

14:.    COOK  V.  CHICAGO,  ROCK  ISLAND  AND  PACIFIC 
RAILWAY  CO., 

81  la.  551;  46  N.  W.  R.  1080;  25  Am.  St.  R.  512.    1890. 

Action  on  the  common  law  duty  of  common  carriers.  From 
the  judgment  for  plaintiff  both  parties  appealed. 

RoTHROCK,  C.J.  ,  .  .  It  appears  that  one  E.  R.  Clapp  was 
an  employee  of  the  defendant.  He  was  located  at  Des  Moines, 
and  was  known  among  shippers  of  live-stock  as  the  Iowa  stock 
agent  of  the  defendant.  Clapp  was  frequently  along  the  rail- 
road in  conference  with  shippers  of  live-stock.  He  held  this  po- 
sition during  the  time  that  the  plaintiffs  made  the  shipments  set 
forth  in  their  petition.  There  were  a  number  of  shippers  of  live- 
stock in  and  about  Newton,  the  principal  station  on  the  defend- 
ant's road  in  Jasper  County.  During  nearly  the  w'hole  time 
covered  by  this  action,  the  tariff  rate  for  shipment  of  live-stock 
from  Newton  to  Chicago  was  sixty  dollars  per  carload.  It  was 
practically  the  same  from  the  stations  next  east  and  west  of 
Newton.  There  was  at  times  a  slight  difference,  but  not  enough 
to  be  a  material  fact  in  the  case.  The  freight  charges,  as  given 
by  the  defendant  to  its  station  agents,  were,  for  the  most  of 
the  time,  sixty  dollars  per  car-load,  and  this  rate  was  given 
out  by  station  agents  to  shippers  as  the  charge  made  by  the  de- 
fendant. All  of  the  car-loads  sent  forward  by  all  the  shippers 
were  billed  by  the  agents  at  the  full  rate  given  out  by  the  com- 
pany. The  stock  was  shipped  in  the  usual  manner.  No  part 
of  the  freight  charges  were  in  any  case  paid  at  the  place  of 
shipment.  The  cars  were  billed  to  commission  houses  at  the 
Union  stock-yards.  The  stock  was  sold  by  the  commission  men, 
and  after  taking  out  their  commission  and  paying  the  freight, 
the  balance  of  the  proceeds  of  the  sales  were  remitted  to  the 
shipper.  This  was  the  uniform  manner  of  transacting  the 
business.  All  of  the  shippers  were  dealt  with  in  exactly  the 
same  manner  until  the  stock  was  sold,  and  the  regular  freight 

277 


§  74  EIGHTS  AND  DUTIES  OF  COMMON  CAEEIEK. 

charges  paid.  There  was  no  difference  in  the  manner  of  the  ser- 
vice. All  of  the  shippers  were  given  the  same  kind  of  cars,  and 
the  stock  shipped  by  the  plaintiffs  was  conveyed  in  the  same 
kind  of  trains,  and  on  the  same  time,  and  with  the  same  privi- 
leges as  to  the  free  transportation  of  one  or  more  men  to  take 
care  of  the  stock  while  in  transit.  In  short,  the  plaintiffs  had 
no  preference  over  other  shippers  in  any  respect.  It  appears 
without  conflict  that  at  least  three  other  firms  or  individuals 
engaged  in  the  same  business  at  the  same  place,  and  in  com- 
petition with  the  plaintiffs,  had  private  and  secret  agreements 
with  Clapp,  the  said  stock  agent,  by  which  they  were  paid  a 
rebate  of  from  three  to  twenty  dollars  on  each  car-load  shipped. 
These  agreements  were  not  uniform  at  all  times.  The  amount 
to  be  paid  varied  just  as  the  parties  were  able  to  agree  upon 
the  terms.  So  far  as  appears,  Clapp  always  performed  the  con- 
tracts. He  paid  the  rebates  sometimes  in  currency,  at  other 
times  by  sending  the  money  to  the  shippers  by  express.  There 
were  short  intervals  during  the  time  that  no  rebates  were  paid. 
But  these  intervals  were  the  exception  and  not  the  rule.  And 
Clapp  always  exacted  a  promise  from  the  favored  shippers  that 
the  fact  of  the  payment  of  rebates  must  be  kept  secret.  We 
have  not  made  a  careful  estimate  of  the  number  of  car-loads 
shipped  by  the  favored  shippers.  Indeed,  no  exact  estimate 
could  be  made  from  the  evidence.  It  is  shown,  however,  b(*- 
yond  all  question,  that  not  less  than  eighteen  hundred  car-loads, 
in  the  aggregate,  were  shipped  by  the  favored  shippers.  The 
plaintiffs  made  application  to  Clapp  for  better  terms,  and  were 
refused.  He  invariably  stated  in  most  positive  terms  that  no 
rebates  nor  concessions  were  allowed  to  any  of  the  plaintiffs' 
competitors.  The  referee  found  that  the  plaintiffs  were  entitled  to 
recover  on  part  of  the  shipments  at  the  rate  of  three  dollars  per 
car,  and  on  others  at  five  dollars,  and  on  the  remainder  at  the 
rate  of  ten  dollars  per  car.  The  aggregate  amount  found  to 
be  due,  including  interest,  was  $2,733.98.  If  the  plaintiffs  are 
entitled  to  recover  on  the  ground  of  unjust  discrimination,  the 
evidence  shows  beyond  all  controversy  that  the  judgment  is  not 
excessive.  Indeed,  we  do  not  understand  appellant's  counsel  to 
claim  that  the  judgment  is  excessive. 

The  real  question  in  the  case  is.  Do  the  facts  above  recited 
authorize  a  recovery  on  the  part  of  the  plaintiffs?  It  is  well 
to  keep  in  mind  the  fact  that  the  defendant  is  a  public  com- 
mon carrier.  At  common  law  a  public  or  common  carrier  is 
bound  to  accept  and  carry  for  all  upon  being  paid  a  reasonable 
compensation.  The  fact  that  the  charge  is  less  for  one  than 
another  is  only  evidence  to  show  that  a  particular  charge  is  un- 

278 


COOK  V.  CHICAGO,  R.  I.  AND  PACIFIC  E.  E.  CO.  §  74 

reasonable.  In  Story  on  Bailments,  sec.  508,  note  3,  it  is  said : 
"There  is  nothing  in  the  common  law  to  hinder  a  carrier  from 
carrying  for  favored  individuals  at  an  unreasonably  low  rate, 
or  even  gratis."  And  in  1  Wood  on  Railroads,  566,  it  is  said: 
"A  mere  discrimination  in  favor  of  a  customer  is  not  unlaw- 
ful, unless  it  is  an  unjust  discrimination."  In  2  Redfield  on 
Railways,  95,  the  following  language  is  used:  "It  has  been 
held  in  this  country,  where  there  is  no  statutory  regulation 
affecting  the  question,  that  common  carriers  are  not  absolutely 
bound  to  charge  all  customers  the  same  price  for  the  same  ser- 
vice. But  as  the  rule  is  clearly  established  at  common  law  that 
a  carrier  is  bound  by  law  to  carry  everything  which  is  brought 
to  him,  for  a  reasonable  sum  to  be  paid  to  him  for  the  same 
carriage,  and  not  to  extort  what  he  will,  it  would  seem  to  fol- 
low that  he  is  bound  to  carry  for  all  at  the  same  price,  unless 
there  is  some  special  reason  for  the  distinction.  For  unless  this 
were  so,  the  duty  to  cany  for  all  would  not  be  of  much  value 
to  the  public,  since  it  would  be  easy  for  the  carrier  to  select  his 
own  customers  at  will,  by  the  arbitrary  discrimination  in  his 
prices.  Hence  it  was  held,  at  an  early  day,  that  all  that  could 
be  required  on  the  part  of  the  owner  of  the  goods  by  way  of 
compensation  was,  that  he  should  be  ready  and  willing  to  pay  a 
reasonable  compensation,  and  to  deposit  the  money  in  advance, 
if  required.  Carrying  for  reasonable  compensation  must  imply 
that  the  same  compensation  is  accepted  always  for  the  same  ser- 
vice, else  it  could  not  be  reasonable,  either  absolutely  or  rela- 
tively." In  Hutchinson  on  Carriers,  243,  after  a  review  of 
the  cases,  it  is  said:  "Hence  we  may  conclude  that  in  this 
country,  independently  of  statutory  provisions,  all  common  car- 
riers will  be  held  to  the  strictest  impartiality  in  the  conduct  of 
their  business,  and  that  all  privileges  or  preferences  given  to 
one  customer,  which  are  not  extended  to  all,  are  in  violation  of 
public  duty."  An  examination  of  the  authorities  cited  by  these 
learned  authors  leaves  no  doubt  that  a  common  carrier  has  no 
right  to  make  unreasonable  charges  for  his  services,  and  that 
he  cannot  lawfully  make  unjust  discrimination  between  his  cus- 
tomers. It  is  strenuously  contended  by  counsel  for  appellant 
that  it  is  not  charged  in  the  petition  as  a  substantial  fact  that 
the  rate  charged  the  plaintiffs  was  unreasonable.  It  is  dis- 
tinctly averred  that  the  rate  charged  the  plaintiffs  "was  un- 
reasonable, and  is  and  was  an  unjust  discrimination."  This 
appears  to  us  to  be  a  sufficient  answer  to  the  argument  of 
counsel  to  the  effect  that  the  action  is  founded  solely  upon 
the  fact  of  mere  difference  in  rates.  It  appears  to  be  con- 
ceded that  the  defendant  had  no  right  to  exact  unreasonable 

279 


§  74  EIGHTS  AND  DUTIES  OF  COMMON  CAEEIEE. 

rates,  or  to  make  unjust  discriminations  between  shippers  which, 
in  effect,  compels  one  shipper  to  pay  an  unreasonable  rate. 

The  above  principles  of  law  may  be  said  to  be  fundamental, 
and  it  is  only  necessary  to  apply  the  facts  to  reach  the  conclu- 
sion that  the  rates  paid  by  the  plaintiffs  were  unreasonable  and 
unjust  discrimination.  It  is  not  claimed  that  the  favored  ship- 
pers were  objects  of  the  charity  of  the  defendant.  The  payment 
of  the  rebates  cannot  -be  designated  as  ' '  alms-giving. ' '  It  does 
not  appear  that  the  concessions  were  made  because  the  fav- 
ored shippers  furnished  more  shipments  than  the  plaintiffs. 
The  fact  is,  that  some  of  the  others  shipped  less  than  the  plain- 
tiffs. In  short,  there  is  no  reason  for  the  discrimination.  It 
is  true  that  it  is  claimed  that  the  rebate  shippers  bought  cattle 
and  hogs  from  territory  in  which  shipments  would  ordinarily 
be  made  upon  other  railroads,  but  the  evidence  shows  that  the 
plaintiffs'  field  of  operation  was  about  the  same  as  the  other 
shippers.  It  does  not  appear  that  the  rebates  were  allowed 
merely  at  times  when  there  were  cut  rates  or  a  war  of  rates 
between  the  defendant  and  rival  railroad  lines.  The  rebates 
were  paid  regularly  for  years,  with  but  short  intervals.  Is  it 
to  be  supposed  that  any  court  or  jury  under  this  state  of  facts 
would  solemnly  find,  declare,  and  adjudge  that,  after  paying 
the  rebate,  the  defendant  did  not  have  a  reasonable  compensa- 
tion if  or  the  service  ?  The  only  finding  that  can  in  any  fairness 
be  made  is,  that  after  deducting  the  rebate  the  rate  was  reason- 
able, and  that  the  exaction  from  the  plaintiffs  was  unreason- 
able, and  the  discrimination  against  them  unjust.  And  the  fact 
that  it  was  secretly  done,  and  that  it  appeared  to  be  neces- 
sary to  carry  it  on  by  lying  and  deceit,  surely  does  not  tend  to 
commend  such  a  course  of  dealing  to  fair-minded  men.  We 
have  been  cited  to  a  number  of  adjudged  cases  by  counsel  for 
the  respective  parties,  and  we  think  we  may  safely  say  that  not 
one  of  them  is  in  conflict  with  the  views  we  have  herein  expressed 
upon  this  question.  On  the  contrary,  and  in  support  of  our 
conclusion,  see  Sharpless  v.  Mayor,  21  Pa.  St.  147,  59  Am.  Dec. 
759;  New  England  Exp.  Co.  v.  Maine  etc.  R'y  Co.,  57  Me.  188, 
2  Am.  Rep.  31;  McDuffee  v.  Portland  etc.  R'y  Co.,  52  N.  H.  430, 
13  Am.  Rep.  72;  Messenger  v.  Pennsylvania  R'y  Co.,  36  N.  J. 
L.  407,  13  Am.  Rep.  457. 

2.  It  is  claimed  in  behalf  of  appellant  that  the  payments  by 
the  plaintiff  were  voluntarily  made,  and  cannot  be  recovered 
back.  It  is  true,  the  money  was  paid  Avithout  duress  of  person 
or  goods,  but  it  was  paid,  not  only  without  knowledge  that  it 
was  a  wrongful  exaction,  but  in  the  belief  of  the  truth  of  the 
positive  assertions  of  Clapp  that  no  shipper  was  allowed  any 

280 


GIBSON  V.  STUEGE.  §  §  74,  75 

rebate.  That  such  a  payment  is  not  voluntary,  see  1  Parsons  on 
Contracts,  466,  and  Heiserman  v.  Burlington  etc.  E-'y  Co.,  63 
Iowa  732,  18  N.  W.  R.  903. 

***** 

Modified  and  affirmed. 


75.     GIBSON  V.  STURGE, 
10  Exchequer  622.    1855. 

Action  for  freight  claimed  to  be  due  on  a  cargo  of  wheat  from 
Odessa  to  Gloucester  and  measured  at  Odessa  2664  quarters. 
The  wheat  was  shipped  on  board  the  vessel  while  in  quarantine 
in  an  open  roadsted,  out  of  barges.  The  vessel  proceeded  direct 
to  Gloucester,  where  she  arrived  on  the  1st  of  December,  1852, 
when  the  cargo  was  claimed  by  the  defendants  under  the  bill 
of  lading.  On  unloading  the  vessel,  the  corn  was  measured,  in 
the  presence  of  the  defendants,  by  the  Custom-house  authorities, 
at  the  Queen's  beam,  and  was  found  to  contain  27851/^  quar- 
ters, the  freight  for  which  would  be  1022L  19s.  5(Z.  In  the 
course  of  the  voyage,  a  large  portion  of  the  corn,  from  some 
cause,  of  which  there  was  no  evidence,  became  heated  and  dam- 
aged. The  defendants  paid  to  the  plaintiffs  978i.  8s.,  being  the 
freight  upon  2664  quarters,  but  refused  to  pay  the  balance  now 
claimed,  on  the  ground  that  the  heated  corn  had  increased  the 
bulk,  and  that  they  were  only  liable  to  pay  for  the  invoice  quan- 
tity shipped  at  Odessa.  The  corn  was  afterwards  dried,  when 
it  was  found  to  weigh  less  than  the  quantity  shipped. 

The  learned  Judge  ruled  that  the  defendants  were  liable  to 
pay  freight  for  the  quantity  of  corn  delivered;  and  a  verdict 
was  found  for  the  plaintiff's  for  the  amount  claimed,  leave  be- 
ing reserved  to  the  defendants  to  move  to  enter  a  nonsuit. 

(Martin,  B.,  delivered  an  opinion  in  favor  of  computing 
freight  on  the  measurement  at  the  port  of  delivery.) 

Platt,  B. — Freight  has  been  well  defined  to  be  the  price  pay- 
able for  the  carriage  of  goods  from  the  port  of  loading  to  their 
port  of  discharge.  In  ordinary  cases  it  does  not  become  payable 
before  the  completion  of  the  voyage  and  of  the  carriage  of  the 
goods  to  their  destination.  From  the  very  nature  of  the  trans- 
action, the  goods  shipped  are  alone  subject  of  the  carriage,  and 
for  the  carriage  of  them  alone  from  the  port  of  shipment  to 
the  port  of  discharge  is  the  freight  payable.     In  conformity 

281 


§  75  BIGHTS  AND  DUTIES  OF  COMMON  CAREIEK, 

with  these  plain  propositions  they  are  described  in  the  bill  of 
lading  as  shipped  in  good  order  and  condition  on  board  the 
particular  vessel,  lying  in  a  particular  place,  and  bound  on  a 
particular  voyage  from  thence  to  a  specified  port,  and  as  to  be 
conveyed  on  that  voyage  and  delivered  in  like  good  order  and 
condition  at  such  port.  They  must  be  shipped  at  the  port  of 
departure  and  thence  carried  the  whole  way  to  the  port  of  dis- 
charge; and  unless  they  are  carried  from  the  beginning  to  the 
end  of  the  voyage  the  freight  is  not  earned. 

But  it  is  suggested,  that  the  computation  of  the  freight  upon 
any  other  measurement  than  one  taken  at  the  port  of  delivery, 
would  impose  hardship  on  the  owners,  who  might,  by  reason 
of  their  receiving  the  cargo  from  boats  in  a  roadstead,  be  unable 
to  ascertain  the  number  of  quarters  taken  on  board.  It  seems, 
however,  to  me,  to  be  the  duty  of  the  master  to  ascertain,  at 
the  time  of  loading,  the  quantity  he  receives;  and  the  difficulty 
in  his  so  doing  appears  to  be  purely  imaginary,  as  it  can  hardly 
be  supposed  that  the  number  of  cubic  feet  which  his  vessel 
is  competent  to  afford  for  the  stowage  of  grain  could  be  unknown 
to  him,  so  that  he  could  not  ascertain  the  cubic  bulk  of  such  a 
commodity  as  grain  when  stowed. 

The  difficulty,  however,  never  could  arise  in  the  present  case ; 
for,  upon  the  facts  raising  the  question  for  the  Court's  decision, 
the  quantity  shipped  was  known,  and  the  owner  contended,  that, 
although  they  received  and  during  the  whole  voyage  have  carried 
that  quantity  only,  yet,  as  by  reason  of  the  moisture  having 
in'  the  course  of  that  voyage  so  operated  upon  the  grain  as  to 
increase  its  bulk,  they  are  entitled  to  profit  by  that  increase, 
and  claim  freight  according  to  the  capacity  of  the  cargo  at  the 
port  of  discharge ;  or,  in  other  words,  to  be  paid  freight  not  only 
for  the  grain  shipped,  but  also  for  the  water  which  they  have 
allowed  to  incorporate  with  it,  and  the  increased  bulk  resulting 
from  that  incorporation.  Such  a  mode  of  payment  would  plain- 
ly offer  a  premium  to  negligence  in  the  treatment  of  a  cargo 
of  this  description  during  the  voyage. 

In  this  case  the  bulk  received  at  the  port  of  loading  was  the 
only  bulk  carried  during  the  whole  of  the  voyage ;  wherefore  I 
think  the  freight  should  have  been  computed  upon  the  measure- 
ment at  that  port,  and  not  at  the  port  of  discharge ;  and  that  the 
rule  obtained  by  the  defendant  should  be  made  absolute. 

Alderson,  B. — In  this  case  I  have  also  the  misfortune  to  dif- 
fer with  my  learned  Brother  Martin  as  to  the  conclusion  at  which 
he  has  arrived,  and  I  shall  state  very  shortly  my  reasons  for  so 
doing.     The  contract  for  freight  in  this  case  is  a  contract  for 

282 


GIBSON  V.  STUKGE.  §  75 

carrying  a  certain  cargo  of  corn  from  Odessa  to  England.  The 
amount  put  on  board  at  the  port  of  loading  was  less  by  a  certain 
number  of  bushels  than  the  am.ount  delivered  at  the  port  of  dis- 
charge. Now,  if  the  rule  be,  that,  in  the  absence  of  any  special 
stipulations,  the  freight  is  due  for  that  quantity  which  has  been 
carried  for  the  whole  voyage,  as  I  think  it  is,  it  seems  to  me  to 
follow  as  a  necessary  consequence,  that  the  less  amount  alone 
falls  within  that  category.  It  is  true,  perhaps,  that  the  same 
individual  grains  are  carried  throughout,  but  they  measure 
more  in  bulk  on  their  arrival  than  at  their  loading.  The  case 
seems  to  me  to  be  in  close  analogy  to  that  of  the  pregnant  females 
mentioned  in  Molloy,  Bk.  2,  Chap.  4,  s.  8,  where  no  freight  is 
payable  for  the  infants  of  whom  they  are  delivered  during  the 
voyage.  And,  again,  where  freight  is  contracted  for  the  trans- 
porting of  animals,  and  some  die  during  the  voyage,  the  freight 
is  payable  only  for  those  which  arrive  safe.  And,  again,  where 
goods,  as  in  the  case  of  molasses,  have  wasted  in  bulk  during 
the  voyage,  freight  is  payable  for  the  amount  which  arrives. 
These  are  admitted  cases.  Now,  all  these  cases  can  only,  as  it 
seems  to  me,  be  reasonably  explained  on  the  principle,  that,  in 
such  cases,  the  freight  is  to  be  calculated  and  paid  on  that 
amount  only  which  is  put  on  board,  carried  throughout  the  whole 
voyage,  and  delivered  at  the  end  to  the  merchant. 

It  is  said,  that  this  will  be  found  inconvenient  in  practice. 
If  it  be  so,  it  may  easily  be  obviated  by  an  express  stipulation. 
But  the  rule  as  it  stands  obviates  an  evil  on  the  other  side — that  of 
suffering  the  owner  of  the  ship  to  gain  by  the  want  of  care  on 
the  part  of  his  master  and  crew;  for  it  may  be  that  corn 
shipped  dry  on  board  may,  by  the  incautious  or  careless  admis- 
sion of  water,  be  deteriorated  in  quality  and  increased  in  bulk, 
so  that,  whilst  there  is  a  loss  from  the  deterioration  to  the  mer- 
chant, the  shipowner  may,  from  the  increased  bulk,  have  a 
benefit.  This  would  be  wrong  as  well  as  inconvenient;  and  the 
rule  proposed  by  my  learned  Brother  would  be  open  to  this  con- 
sequence. For  these  reasons  I  cannot  agree  in  the  conclusion 
at  which  he  has  arrived. 

Pollock,  C.  B. — It  is  unnecessary  further  to  allude  to  the 
facts  of  this  case,  which  have  been  fully  and  clearly  stated  by 
my  Brother  Martin,  from  whose  view  of  the  subject  I  very  re- 
luctantly differ,  as  I  think  that  his  opinion  on  such  a  matter  (a 
question  of  commercial  law)  is  entitled  to  the  highest  respect. 
But,  on  the  best  consideration  I  can  give  to  the  subject  in  dis- 
pute between  the  parties,  I  am  of  opinion  that  the  rule  ought 
to  be  made  absolute,  as  I  think  that  the  defendant  has  paid 
all  that  the  plaintiff  was  entitled  to  demand ;  and  that  the  claim 

283 


§  75  EIGHTS  AND  DUTIES  OF  COMMON  CAERIEE. 

to  be  paid  freight  for  the  increased  bulk,  which  the  wheat  ac- 
quired during  the  voyage,  cannot  be  sustained. 

The  remote  cause  of  the  increased  bulk  of  the  wheat  does  not 
appear;  but  there  is  little  doubt  about  the  immediate  cause.  It 
is  clear,  that  there  was  not  a  real  increase  of  the  commodity;  it 
was  an  apparent  increase  only.  From  some  cause  (unknown) 
the  wheat,  during  the  voyage  (it  may  be  during  the  last  two  or 
three  days  of  the  voyage),  probably  imbibed  a  quantity  of  water, 
which  made  it  occupy  a  larger  space ;  and  the  shipowner  claims 
to  be  paid  freight  for  the  water  imbibed  during  the  voyage  (and 
possibly  the  last  two  or  three  days  of  it),  as  well  as  for  the 
wheat  that  was  shipped  on  board  and  carried  the  whole  voyage. 
It  may  be  conceded,  that  the  cause  of  this  is  one  for  which  the 
plaintiff  is  not  responsible;  but,  on  the  other  hand,  it  must  be 
admitted  that  (whatever  it  was)  it  was  not  one  for  which  the 
defendant  was  responsible ;  in  this  respect  the  parties  stand 
on  an  equal  footing;  and  I  agree  with  my  Brother  Martin,  that 
our  decision  ought  to  be  founded  on  some  principle,  not  imputing 
in  this  respect  any  blame  to  either  party. 

The  first  question  is — Is  this  claim  supported  by  the  terms  of 
the  bill  of  lading?  And  it  appears  to  me  that  it  is  not.  From 
the  terms  of  the  bill  of  lading  I  infer  that  freight  was  to  be  paid 
for  the  commodity  sliipped,  carried  and  delivered;  and  that  all 
these  must  concur  to  create  a  title  to  freight.  If  shipped  and 
carried,  but  not  delivered,  freight  would  not  be  payable ;  so, 
I  think,  if  delivered,  but  not  shipped,  freight  would  not  be  pay- 
able; and  this  agrees  with  the  decisions  (very  few  in  number, 
and  none  of  them  precisely  in  point),  which  are  to  be  found  in 
the  books  on  the  subject  of  increase  or  decrease  (during  the 
voyage)  of  the  article  to  be  carried.  I  agree,  that  the  bulk  or 
weight,  as  appearing  at  the  port  of  destination,  may  be  prima 
facie  the  criterion  of  the  freight  to  be  paid;  but,  when  it  is 
proved  that  tliat  test  is  fallacious  and  untrue,  and  that  the  real 
quantity  shipped  was  a  different  and  smaller  quantity  (as  the 
jury  in  this  case  have  actually  found),  then  I  think  that  the 
freight  ought  to  be  calculated  upon  the  true  quantity  shipped; 
and  in  my  judgment  the  captain's  ignorance  of  the  true  quan- 
tity (as  expressed  in  the  bill  of  lading)  cannot  entitle  him  to 
charge  freight  according  to  a  false  estimate :  whether  the  actual 
quantity  be  stated  and  admitted  in  the  bill  of  lading,  or  the  con- 
tents are  stated  to  be  unknown,  appears  to  me  to  make  no  dif- 
ference as  to  the  principle  which  ought  to  govern  our  decision. 
But  it  does  appear  to  me  to  be  contrary  to  the  principles  of 
natural  justice,  that  the  ship-owner  should  acquire  a  right  to 
demand  more  freight,  and  the  owner  of  the  goods  become  liable 

284 


GIBSON  V.  STURGE.  §  75 

to  pay  more  freight,  in  consequence  of  a  circumstance  which  is 
an  injury  to  the  goods,  and  which  has  occurred  to  them  while 
they  were  in  the  care,  custody,  and  keeping  of  the  shipowner, 
or  those  who  represent  him ;  over  the  causes  of  which  the  owner 
of  the  goods  has  no  control,  but  some  of  the  possible  causes  of 
which  are  considerably,  or  entirely,  under  the  control  of  the 
captain  and  the  crew. 

I  apprehend  no  one  can  entertain  any  doubt,  that,  if  the  water 
which  has  caused  the  apparent  increase  were  capable  of  separa- 
tion from  the  wheat  originally  shipped,  the  defendant  would  be 
entitled  to  reject  it,  and  to  accept  and  pay  freight  for  the  wheat 
freed  from  this  injurious  addition.  In  the  case  of  a  cargo  of 
sponge  shipped  dry,  and  to  be  paid  for  by  weight  at  the  end  of 
the  voyage,  the  consignee  might  surely  squeeze  out  all  the  water 
imbibed  during  the  voyage  (if  any),  and  pay  for  sponge  only. 
It  seems  to  me,  that  the  right  to  demand,  and  the  liability  to 
pay,  additional  freight,  in  a  case  where  the  goods  have  received 
a  damaging  (but  only  an  apparent)  increase,  cannot  turn  on  the 
mere  difficult}^  of  separation.  If  it  can  be  accurately  known  and 
ascertained  what  ought  to  be  separated,  though  the  separation 
cannot  be  made,  it  is  known  what  ought  to  be  deducted  from 
\he  claim  of  freight,  and  the  deduction  (which  is  possible)  ought 
to  be  made.  Here  the  measure  of  the  wheat  shipped  was  known 
and  has  been  proved, — all  beyond  that  is  water;  and  though 
the  water  cannot  be  separated,  the  amount  of  freight  charged 
for  the  water  can  be  ascertained,  and,  I  think,  ought  to  be  de- 
ducted from  the  claim  founded  on  the  mere  measurement  at  the 
port  of  discharge  or  delivery ;  and  I  think  it  is  no  answer  to  this, 
to  say,  that  in  many  cases  the  quantity  shipped  would  be  un- 
known, or  would  be  ascertained  with  difficulty.  Deal  with  those 
cases  as  justice  or  convenience  may  require,  but  do  not  exclude 
the  truth,  where  accessible,  because  you  cannot  always  obtain  it. 
If  the  experience  of  commerce  has  discovered  that  the  measure- 
ment at  the  port  of  destination  was  the  most  convenient,  and  had 
established  it  by  usage  and  custom,  the  parties  would  have  been 
bound  by  it,  and  the  point  would  not  have  come  before  us  for 
our  decision.  From  there  being  no  evidence  of  any  such  usage 
or  custom,  I  infer  that  there  is  no  such  custom ;  and  that,  there- 
fore, there  is  no  such  convenience  as  ought  to  be  the  foundation 
of  a  custom,  or  as  ought  to  influence  our  decision  in  establish- 
ing a  rule  for  the  first  time.  But,  it  is  manifest,  that  a  cargo 
of  wheat  may  be  increased  in  bulk  (and  to  the  great  injury  of 
the  cargo)  by  the  fraud  or  negligence  of  the  captain  and  crew; 
and  I  think  that  laws  ought  to  be  framed,  and  the  decisions  of 
Courts  of  law  (as  far  as  possible)  ought  to  be  founded,  on  the 

285 


§§  75,  76    EIGHTS  AND  DUTIES  OF  COMMON  CAKKIEE. 

same  principles  as  we  have  no  doubt  prevail  in  the  moral  gov- 
ernment of  the  universe,  that,  as  far  as  possible,  duty  and  in- 
terest should  not  be  opposed  to  each  other.  I  think  it  would 
be  dangerous  and  mischievous  to  give  a  shipowner  a  right  to 
charge  more  freight  for  an  injurious  alteration  in  the  commodity 
carried,  which  he  or  his  agents  have  always  the  means  in  their 
own  hands  of  producing. 

I  am,  therefore,  of  opinion,  that  freight  for  this  increase  of 
bulk  cannot  be  claimed  under  the  bill  of  lading ;  and  I  think  it 
cannot  be  claimed  on  any  principle  recognized  by  the  common 
law.    I  think  there  is  no  contract,  express  or  implied,  to  pay  it. 

Rule  absolute. 


76.     UNION  FREIGHT  RAILROAD  CO.  V.  WINKLEY, 

159  Mass.  133;  34  N.  E.  R.  91;  38  Am,  St.  R.  398.   1893. 

Action  against  a  consignor  of  ice  for  the  freight.  Bills  had 
been  sent  to  the  consignee,  with  a  demand  for  payment  of  the 
freight. 

Field,  C.  J.  The  plaintiff  is  the  second  in  a  line  of  three 
connecting  railroads  over  which  the  ice  was  transported,  and 
the  freight  due  to  the  first  two  roads  has  been  paid  by  the  last. 
We  assume,  without  deciding  it,  that  the  right  of  the  plaintiff 
to  maintain  this  action  is  the  same  as  if  it  were  the  first  road, 
and  the  freight  had  not  been  paid.  With  whom,  then,  did  the 
Boston  and  Maine  Railroad  make  the  contract  for  the  trans- 
portation, and  who  promised  that  company  to  pay  the  freight? 
There  was  no  express  contract.  The  defendants,  through  their 
servants,  might  have  contracted  with  the  railroad  to  pay  the 
freight,  although  as  between  themselves  and  Merrick  he  was 
bound  to  pay  it,  but  they  made  no  such  contract  in  terms.  A 
consignor  of  merchandise  delivered  to  a  railroad  for  transporta- 
tion may  be  the  owner  and  act  for  himself,  or  may  be  an  agent 
for  the  owner  and  act  for  him,  and  this  may  or  may  not  be 
known  to  the  railroad  company.  In  the  present  case  the  rail- 
road company  knew  the  name  and  residence  of  the  consignee. 

From  the  agreed  facts,  it  appears  that  the  title  to  the  ice 
passed  to  Merrick  when  it  was  put  on  board  the  car,  and  that 
it  was  transported  at  his  risk.  The  doctrine  of  the  courts  of  the 
United  States  seems  to  be  that  the  property  in  goods  shipped 
is  presumably  in  the  consignee,  although  this  presumption  may 
be  rebutted  by  proof :  Lawrence  v.  Minturn,  17  How.  100 ;  Blum 
V.  The  Caddo,  1  Woods,  64.     In  Dicey  on  Parties  to  Actions, 

286 


UNION  FKEIGHT  E.  E.  CO.  v.  WINKLEY.  §  7G 

87,  88,  the  result  of  the  English  decisions  is  stated  to  be  as  fol- 
lows: "The  contract  for  carriage  is,  in  the  absence  of  any  ex- 
press agreement,  presumed  to  be  between  the  carrier  and  the 
person  at  whose  risk  the  goods  are  carried,  i.  e.,  the  person  whose 
goods  they  are,  and  who  would  suffer  if  the  goods  were  lost.  * 
*  *  When,  therefore,  goods  are  sent  to  a  person  who  has  pur- 
chased them,  or  are  shipped  under  a  bill  of  lading  by  a  person's 
order,  and  on  his  account,  the  consignee,  as  being  the  person  at 
whose  risk  the  goods  are,  is  considered  the  person  with  whom 
the  contract  is  made.  He  is  liable  to  pay  for  the  carriage,  and 
is  the  proper  person  to  sue  the  carrier  for  a  breach  of  contract." 
And  on  page  90,  note,  "Where  the  consignor  acts  as  agent  of 
the  consignee,  but  contracts  in  his  own  name,  it  would  appear 
that  either  the  consignor  or  the  consignee  may  sue";  Dawes  v. 
Peck,  8  Term  Rep.  330;  Domett  v.  Beckford,  5  Barn.  &  Adol. 
521 ;  Coombs  v.  Bristol  etc.  Ry.  Co.,  3  Hurl.  &  N.  1 ;  Sargent  v. 
Morris,  3  Barn.  &  Aid.  277 ;  Dunlop  v.  Lambert,  6  Clark  &  F. 
600;  Great  Western  Ry.  Co.  v.  Bagge,  15  Q.  B.  D.  625;  Cork 
Distilleries  Co.  v.  Great  Southern  etc.  Ry.  Co.,  L.  R.  7  H.  L.  269. 
The  cases  generally  are  collected  in  Hutchinson  on  Carriers,  sees. 
448,  et  seq.,  720,  et  seq.  Most  of  the  English  cases  were  re- 
viewed in  Blanchard  v.  Page,  8  Gray,  281.  That  was  a  case 
of  the  carriage  of  goods  by  sea  under  a  bill  of  lading,  and  it 
was  held  that  the  bill  of  lading  was  a  contract  between  the  ship- 
per and  the  shipowner,  and  that,  although  it  was  shown  that 
the  shipper  acted  as  agent  of  the  consignees,  who  had  bought 
and  paid  for  the  goods  before  shipment,  yet  he  could  bring  an 
action  in  his  own  name  for  breach  of  the  contract  of  carriage 
unless  he  was  prohibited  by  his  principal,  and  it  was  said  that 
he  would  be  liable  for  the  freight.  In  Wooster  v.  Tarr,  8  Allen, 
270,  85  Am.  Dec.  707,  it  was  decided  that  under  a  bill  of  lad- 
ing in  the  usual  form  the  shipper  was  liable  to  the  carrier  for  the 
freight,  although  the  bill  contained  the  usual  clause  that  the 
goods  were  to  be  delivered  to  the  consignees  or  their  assignees, 
"he  or  they  paying  freight  for  said  goods,"  etc.  It  was  said 
"to  be  the  settled  doctrine  that  a  bill  of  lading  is  a  written 
simple  contract  between  a  shipper  of  goods  and  a  shipowner; 
the  latter  to  carry  the  goods,  and  the  former  to  pay  the  stipu- 
lated compensation  when  the  service  is  performed."  Both  these 
cases  were  upon  express  contracts. 

The  strongest  case  for  the  plaintiff  is  Finn  v.  Western  R.  R. 
Co.,  102  Mass.  283,  17  Am.  R.  128.  (For  this  reference  see  Finn 
v.  R.  R.,  post  §  177. 

Although  this  was  not  a  suit  to  recover  freight,  the  principles 
on  which  it  was  decided  are  applicable  to  such  a  suit,  and  the 

287 


§§  76,  77    EIGHTS  AND  DUTIES  OF  COMMON  CAREIER. 

effect  of  this  and  the  previous  decisions,  we  think,  is  that  in  this 
commonwealth,  when  the  vendor  of  goods  delivers  them  to  a  rail- 
road to  be  carried  to  the  purchaser,  although  the  title  passes  to 
the  purchaser  by  the  delivery  to  the  railroad  company,  and  the 
name  and  address  of  the  consignee  who  is  the  purchaser  is  known 
to  the  company,  the  vendor  is  presumed  to  make  the  contract 
for  transportation  with  the  company  on  his  own  behalf,  and  is 
held  liable  to  the  company  for  the  payment  of  the  freight.  This 
presumption,  however,  is  a  disputable  one,  and  may  be  rebutted 
or  disproved  by  evidence;  and  if  the  vendee  has  ordered  the 
goods  to  be  sent  at  his  risk  and  on  his  account,  he  also  may  be 
held  liable,  as  the  real  principal  in  the  contract :  See  Byington 
V.  Simpson,  134  Mass.  169,  45  Am.  Rep.  314.  But  whether  the 
presumption  be  one  way  or  the  other,  it  is  a  matter  of  inference 
from  the  particular  circumstances  of  the  case,  and  the  question 
which  is  always  to  be  considered  is  the  understanding  of  the 
parties :    See  Boston  etc.  R.  R.  Co.  v.  Whitcher,  1  Allen,  497. 

In  the  present  case  there  was  no  bill  of  lading  or  receipt  signed 
by  the  railroad  company  and  accepted  by  the  defendants.  There 
was  a  waybill,  but  it  does  not  appear  that  the  names  of  the  de- 
fendants were  in  it.  The  freight  charges  w^ere  made  in  every  in- 
stance to  Merrick,  the  consignee,  and  the  bills  for  freight  were 
sent  to  him.  These  facts,  and  perhaps  some  others  stated  in 
the  agreed  facts,  afford  some  evidence  that  the  railroad  com- 
pany understood  that  Merrick  was  to  pay  the  freight  to  the 
company.  Upon  an  agreed  statement  of  facts  this  court  cannot 
draw  inferences  of  fact,  unless  they  are  necessary  inferences: 
Old  Colony  R.  R.  Co.  v.  Wilder,  137  Mass.  536.  The  agreed 
facts  in  this  case,  we  think,  contain  some  evidence  that  the  un- 
derstanding of  all  the  parties  was  that  Merrick  should  pay  the 
freight  to  the  railroad  company,  and  we  cannot  hold,  as  matter 
of  law,  that  the  defendants  made  a  contract  on  their  own  behalf 
to  pay  the  freight. 

Judgment  affirmed. 


77.     BRIGGS  V.  BOSTON  &  LOWELL  RAILROAD  CO., 

6  Allen  (Mass.)  246;  83  Am.  D.  626.    1863. 

Trover  for  conversion  of  flour.  Defendant  appeals  from  judg- 
ment for  plaintiff. 

By  Court,  INIerrick,  J.  The  plaintiff,  who  resides  at  Racine, 
in  the  state  of  Wisconsin,  delivered  the  flour,  the  value  of  which 
he  seeks  to  recover  in  this  action,  to  the  Racine  and  Mississippi 

288 


BEIGGS  V.  BOSTON  AND  LOWELL  R.  R.  CO.  §  77 

Railroad  Company,  taking  from  their  agents  a  receipt,  in  which 
they  agreed  to  forward  and  deliver  it  to  Franklin  E.  Foster, 
at  Williamstown,  in  this  state.  By  mistake  of  the  agents  of  that 
company,  the  flour  was  erroneously  directed  or  billed  to  Wil- 
mington, where  there  is  a  freight  station  on  the  road  of  the  de- 
fendants. It  was  carried  by  the  Racine  and  IMississippi  com- 
pany over  their  road,  and  at  its  eastern  termination  delivered  to 
the  carriers  next  in  succession  in  the  line  and  route  from  Racine 
to  Wilmington.  And  it  was  thus  transported  by  the  successive 
carriers  in  that  line  and  route  in  their  vessels  and  cars  respect- 
ively, according  to  the  bills  and  directions  under  which  it  was 
forwarded  from  Racine,  until  it  arrived  in  due  time  at  Groton, 
the  point  of  the  commencement  of  the  road  of  the  defendants. 
And  it  was  there  received  by  them,  they  paying  the  freight 
earned  by  all  the  preceding  carriers,  and  carried  to  Wilming- 
ton, where  it  was  duly  deposited  in  their  freight  depot.  But 
Franklin  E.  Foster,  to  whom  it  was  directed,  did  not  reside 
or  have  any  place  of  business  at  Wilmington,  and  the  defend- 
ants were  unable  to  find  there  any  consignee  who  could  be  noti- 
fied of  its  arrival,  or  to  whom  it  could  be  delivered.  The  de- 
fendants' agents  immediately  instituted  a  diligent  inquiry,  but 
they  could  not  ascertain  where  the  consignee,  or  any  other  per- 
son entitled  to  have  possession  of  the  flour,  was  to  be  found, 
or  could  be  notified.  At  the  time  of  its  arrival  at  Wilmington 
it  was  beginning  to  become  sour,  and  would  soon  have  greatly 
deteriorated  in  value.  The  defendants  kept  it  on  hand  in  store 
for  about  two  months ;  and  at  the  expiration  of  that  time,  being 
still  unable  to  find  either  the  owner  or  the  consignee,  and  it  be- 
ing out  of  their  power  to  procure  a  warehouse  in  which  they 
could  store  it  for  a  longer  time,  they  caused  it  to  be  sold  at 
public  auction,  and  received  the  proceeds  of  the  sale,  which 
they  have  since  retained  in  their  possession. 

Upon  these  facts,  the  plaintiff  in  the  first  place  contends  that 
as  Williamstown  was  the  place  of  destination  of  the  flour  under 
the  directions  which  he  gave  to'  the  Racine  and  Mississippi 
Railroad  Company,  and  according  to  their  agreem^ent  in  the  re- 
ceipt given  for  it  by  them  to  him,  the  defendants  had  no  right 
to  receive  the  flour  at  Groton,  and  were  guilty  of  the  unlawful 
conversion  of  it  to  their  own  use  by  transporting  it  thence  to 
Wilmington;  although  in  such  reception  and  transportation  of 
it  over  their  road  they  acted  in  good  faith,  and  strictly  in  con- 
formity to  the  bills  and  directions  which  were  made  and  given 
by  the  agents  of  the  Racine  and  Mississippi  company,  and  by 
which  it  was  regularly  accompanied  over  each  and  all  the  lines 
and  routes  of  the  successive  carriers. 
19  289 


§  77  EIGHTS  AND  DUTIES  OF  COMMON  CAEEIER. 

The  same  person  may  be,  and  often  is,  not  only  a  common  car- 
rier, but  also  the  forwarding  agent  of  the  owner  of  the  goods 
to  be  transported :  Story  on  Bailments,  sees.  502,  537.  He  must 
necessarily  act  in  the  latter  capacity  whenever  he  receives  goods 
which  are  to  be  forwarded,  not  only  on  his  own  line,  but  to 
some  distant  point  beyond  it  on  the  line  of  the  next  carrier, 
or  on  that  of  the  last  of  several  successive  carriers  on  the  regu- 
lar and  usual  route  and  course  of  transportation,  to  which  they 
are  to  be  carried  and  there  delivered  to  the  consignee.  The 
owner  generally  does  not  and  cannot  always  accompany  them 
and  give  his  personal  directions  to  each  one  of  the  successive 
carriers.  He  therefore,  necessarily,  in  his  own  absence,  devolves 
upon  the  carrier  to  whim  he  delivers  the  goods  the  duty  and 
invests  him  with  authority  to  give  the  requisite  and  proper 
directions  to  each  successive  carrier  to  whom,  in  due  course  of 
transportation,  they  shall  be  passed  over  for  the  purpose  of 
being  forwarded  to  the  place  of  their  ultimate  destination.  Other- 
wise they  would  never  reach  that  place.  For  the  first  carrier 
can  only  transport  the  goods  over  his  own  portion  of  the  line, 
and  if  he  is  not  authorized  to  give  the  carrier  with  whose  route 
his  own  connects,  directions  in  reference  to  their '  further  trans- 
portation, they  must  stop  at  that  point;  for  although  in  general 
every  carrier  is  bound  to  accept  and  forward  all  goods  which  are 
brought  and  tendered  to  him,  yet  he  is  not  so  bound  unless  he 
is  duly  and  seasonably  informed  and  advised  of  the  place  to 
which  they  are  to  be  transported :  Story  on  Bailments,  sec.  532 ; 
Judson  V.  Western  Railroad,  4  Allen,  520,  81  Am.  D.  718. 

Hence  it  results  by  inevitable  implication  that  when  an  owner 
of  goods  delivers  them  to  a  carrier  to  be  transported  over  his 
route,  and  thence  over  the  route  of  a  succeeding  car- 
rier, or  the  routes  of  several  successive  carriers,  he 
makes  and  constitutes  the  persons  to  whom  he  delivers  them 
his  forwarding  agents,  for  whose  acts  in  the  execution  of  tlii*: 
agency  he  is  himself  responsible.  And  therefore,  if  the  several 
successive  carriers  carry  the  goods  according  to  the  directions 
which  are  given  by  the  forwarding  agents,  they  act  under  the 
authority  of  the  owner,  and  cannot  in  any  sense  be  considered  as 
wrong-doers,  although  they  are  carried  to  a  place  to  which  he 
did  not  intend  that  they  should  be  sent.  And  in  such  case  the 
last  carrier  will  be  entitled  to  a  lien  upon  the  goods,  not  only 
for  the  freight  earned  by  him  on  his  own  part  of  the  route, 
but  also  for  all  the  freight  which  has  been  accumulating  from 
the  commencement  of  the  carriage  until  he  receives  them,  which, 
according  to  a  very  convenient  custom  which  is  now  fully  recog- 
nized and  established  as  a  proper  and  legal  proceeding,  he  has 

290 


BKIGGS  V.  BOSTON  AND  LOWELL  E.  E.  CO.  §  77 

paid  to  the  preceding  carriers :  Stevens  v.  Boston  and  Worces- 
ter R.  R.  Co.,  8  Gray,  266. 

Applying  these  rules  and  principles  to  the  facts  developed 
in  the  present  case,  the  conclusion  is  plain  and  inevitable.  It 
x»'  conceded  by  the  plaintiff,  and  agreed  by  the  parties,  that  the 
flour  was  carried  by  the  Racine  and  Mississippi  Railroad  Com- 
pany over  their  road,  and  was  then  delivered  to  the  carrier  with 
whose  route  their  own  connected,  and  was  thence  transported  in 
strict  compliance  with  and  exactly  accordingly  to  the  directions 
given  by  them  and  contained  in  the  bills  which  they  forwarded 
with  and  caused  to  accompany  the  flour  over  the  whole  route 
from  Racine  to  Wilmington,  by  the  several  successive  carriers, 
and  among  others  by  the  defendants.  The  Racine  and  Missis- 
sippi company  were  the  duly  constituted  forwarding  agents  of 
the  plaintiff ;  and  as  the  defendants  acted  under  their  authority, 
they  rightfully  received  the  flour  at  Groton  and  carried  it  to  Wil- 
mington. And  having  under  that  authority  paid  all  the  freight 
which  had  accumulated  in  the  whole  course  of  the  conveyance, 
including  that  which  had  been  charged  by  the  forwarding  agent, 
up  to  the  time  when  they  received  the  flour,  they  were,  as  soon 
as  it  was  conveyed  to  and  deposited  in  their  own  freight-house, 
entitled  to  a  lien  thereon  for  the  entire  freight  thus  paid  and 
earned.  And  they  cannot,  either  by  the  transportation  of  it 
under  such  circumstances  over  their  own  road,  or  by  the  deten- 
tion thereof  for  the  purpose  of  enforcing  their  lien  upon  it,  be 
held  to  have  unlawfully  converted  it  to  their  own  use. 

This  conclusion  does  not  at  all  conflict  with  the  decision  in 
the  case  of  Robinson  v.  Baker,  5  Cush.  137,  51  Am.  Dec.  54, 
upon  which  the  plaintiff,  in  support  of  his  position,  chiefly  re- 
lies. For  there  is  an  essential  diff'erence  between  the  facts  in 
the  present  and  those  which  appeared  in  that  case.  There 
it  was  shown  that  the  plaintiff,  the  owTier  of  a  parcel  of  flour, 
delivered  it  at  Black  Rock,  on  board  of  one  of  their  canal-boats, 
to  the  Old  Clinton  Line  Company,  who  gave  for  it  bills  of  lading 
in  duplicate,  wherein  they  undertook  and  agreed  to  transport 
it  to  Albany,  and  there  deliver  it  to  Witt,  the  agent  of  the  West- 
ern Railroad.  The  plaintiff  sent  one  of  these  bills  of  lading  to 
Witt,  and  the  other  to  the  consignee  at  Boston,  thus  reserving  to 
himself  the  right  and  assuming  the  responsibility  of  giving  to 
Witt  the  directions  under  which  he  was  to  act.  The  service 
which  the  Old  Clinton  Line  Company  was  to  render  was  exclu- 
sively in  their  capacity  as  commcn  carriers.  They  had  only  to 
carry  the  flour  to  Albany,  and  there  deliver  it  to  Witt.  They 
had  no  other  duty  to  perform;  no  right  to  exercise  any  control 
over  it  for  any  other  purpose.     They  were  not,  therefore,  the 

291 


§  77  EIGHTS  AND  DUTIES  OF  COMMON  CAnKIEE. 

forwarding  agents  of  the  plaintiff,  nor  invested  by  him  with  iwiy 
authority  to  give  directions  as  to  the  further  transportation  of 
the  flour,  or  to  make  any  other  disposition  of  it  than  its  de- 
livery to  Witt.  Yet  upon  its  arrival  in  Albany,  in  consequence 
of  the  inability  of  Witt  immediately  to  receive  and  take  charge 
of  it,  the  agents  of  the  Clinton  Line  Company,  without  right, 
and  in  violation  of  their  duty,  shipped  the  flour  to  the  city  of 
New  York,  and  from  there  to  Boston,  in  the  schooner  Lady  Suf- 
folk, whose  owners  claimed  a  right  to  detain  it  under  a  lien 
upon  it  for  the  freight.  But  the  court,  upon  the  general  prin- 
ciple that  if  a  carrier,  though  innocently,  receives  goods  from  a 
wrong-doer  without  the  consent  of  the  owner,  express  or  im- 
plied, he  cannot  detain  them  against  the  true  owners  until  the 
freight  or  carriage  is  paid,  determined  that  they  had  no  lien 
upon  the  flour,  and  that  their  claim  to  that  efl^ect  could  not  be 
sustained.  But  if  they  had  been  the  forwarding  agents  of  the 
owner,  he  would  have  been  responsible  for  their  acts,  and  his 
consent  to  the  diversion  of  the  property  from  its  intended  route 
of  transportation  would  have  resulted  by  implication  from  their 
directions,  and  the  respective  carriers  would  then  have  become 
entitled  to  hold  it  under  a  lien  to  secure  payment  of  the  freight. 
When  the  flour  had  been  carried  over  their  road  to  Wilmington, 
and  deposited  at  that  place  in  their  warehouse,  the  defendants 
had,  as  has  been  shown  above,  a  lien  upon  it  for  all  the  freight 
which  had  been  earned  in  its  transportation  from  Racine.  But 
this  gave  them  only  a  right  to  detain  it  until  they  were  paid ;  not 
to  sell  it  to  obtain  the  remuneration  to  which  they  were  entiled. 
In  the  case  of  Lickbarrow  v.  Mason,  6  East,  21,  note,  it  is  said 
by  the  court  that  an  owner  may  sell  or  dispose  of  his  property  as 
he  pleases;  but  he  who  has  a  lien  only  on  goods  has  no  right 
to  do  SO;  he  can  only  detain  them  until  payment  of  the  sum 
for  which  they  are  chargeable.  And  the  rule  which  is  now  well 
established,  that  a  party  having  a  lien  only,  without  a  power 
of  sale  superadded  by  special  agreement,  cannot  lawfully  sell 
the  chattel  for  his  reimbursement,  is  as  applicable  to  carriers 
as  it  is  to  all  other  persons  having  the  like  claim  upon  property 
in  their  possession:  Jones  v.  Pearle,  1  Strange,  556;  2  Kent's 
Com.,  6th  ed.,  642 ;  Doane  v.  Russell,  3  Gray,  382.  It  is  in  dis- 
tinct recognition  of  this  principle  that  the  legislature  have  pro- 
vided that  when  the  owner  or  consignee  of  fresh  meat,  and  of 
certain  other  enumerated  articles,  liable  soon  to  perish  for  want 
of  care,  shall  not  pay  for  the  transportation,  and  take  them  away, 
common  carriers  who  have  a  lien  thereon  for  the  freight  may 
sell  the  same  without  any  delay,  and  hold  the  proceeds,  subject 
to  their  own  lawful  charges,  for  the  use  of  the  owner.     And 

292 


KUCKEE  V.  DONOVAN.  §  §  77,  78 

such  also  is  the  provision  in  relation  to  trunks,  parcels,  and 
passengers'  effects  left  unclaimed  at  any  passenger  station  of  a 
railway  company  for  a  period  of  six  months  after  arrival  and 
deposit  therein :  Gen.  Stats.,  c.  80,  sees,  1,  2,  5.  This  enumera- 
tion of  particular  cases,  in  which  the  right  to  sell  and  dispose  of 
certain  goods  and  chattels  transported  is  conferred  upon  com- 
mon carriers,  operates,  according  to  a  familiar  rule  of  law,  as  a 
denial  or  exclusion  of  their  right  in  all  other  instances. 

None  of  the  provisions  of  the  statute  referred  to  extends  to 
the  case  of  flour  transported  in  barrels  as  an  article  of  merchan- 
dise. And  therefore  the  defendants  had  no  authority  under 
the  statute,  and  no  right  at  law,  to  sell  the  flour  which  belonged 
to  the  plaintifi",  although  they  had  a  valid  and  subsisting  lien 
upon  it,  and  were  unable  to  find,  after  diligent  inquiry,  where 
the  person  to  whom  it  ought  to  be  delivered  resided  or  had  his 
place  of  business,  and  there  was  danger  of  its  becoming  worth- 
less by  longer  detention  of  it  in  their  warehouse.  And  conse- 
quently, the  sale  which  they  made  was  an  unlawful  conversion 
of  it  to  their  own  use,  which  renders  them  liable  in  an  action  of 
tort  to  the  owner  for  its  value,  or  rather  for  the  value  of  all  the 
right  and  interest  which  he  at  that  time  had  in  it,  which  is  the 
merchantable  value  less  the  amount  of  the  lien  upon  it.  The 
plaintiff,  therefore,  may  maintain  this  action,  and  is  entitled 
to  recover  as  damages  the  balance  left  after  deducting  from  the 
sum  which  was  the  fair  merchantable  value  of  the  flour  at  the 
time  of  the  conversion,  the  amount  for  which,  upon  the  princi- 
ples before  stated,  they  had  a  lien  upon  it,  with  interest  from 
the  time  of  demand,  or  the  date  of  the  writ.  And  as  the  sale 
was  unlawful,  the  expenses  incurred  in  making  it  cannot  be 
proved  for  the  purpose  of  diminishing  the  damages  which  the 
plaintiff  ought  to  recover. 

Judgment  is  therefore  to  be  rendered  for  him.  Unless  the 
parties  agree  upon  the  amount,  the  cause  must  be  sent  to  an 
assessor,  or  submitted  to  a  jury,  if  either  party  requires  it,  to 
assess  the  damages. 


78.    RUCKER  V.  DONOVAN, 

13  Kan.  251;  19  Am.  R.  84.    1874. 

Replevin  by  Donovan  to  recover  turpentine  and  coal  oil  from 
Rucker,  a  constable.  On  judgment  for  plaintiffs,  Rucker  took 
the  case  up  on  error. 

Brewer,  J.     This  was  an  action  of  replevin  brought  by  de- 

293 


§  78  EIGHTS  AND  DUTIES  OF  COMMON  CAERIER. 

f endants  in  error  in  the  District  Court  of  Bourbon  county.  The 
testimony  is  not  in  the  record,  and  the  case  is  before  us  on  the 
pleadings,  the  findings,  and  judgment.  The  petition  alleges  an 
absolute  ownership.  The  findings  show  that  the  goods  were  in 
the  possession  of  Rucker  as  constable  by  virtue  of  proper  and 
legal  process  against  the  firm  of  L.  E.  Conner  &  Co.  Plain- 
tiffs' title  was  based  upon  an  attempted  exercise  of  the  right  of 
stoppage  in  transitu.  The  findings  are,  that  plaintiffs  at  St. 
Louis  sold  the  goods  to  Conner  &  Co.,  and  shipped  them  to  Fort 
Scott;  that  Conner  &  Co.  were  then  insolvent,  and  that  this  in- 
solvency was  unknown  to  plaintiffs;  that  the  goods  never  came 
into  the  possession  of  Conner  &  Co.,  but  were  taken  by  the  con- 
stable from  the  carrier  by  virtue  of  his  process;  and  that  the 
constable  paid  the  freight-charges,  and  also  that  plaintiffs  de- 
manded possession  of  the  goods  from  the  constable  before  suit, 
and  while  they  were  in  his  possession,  but  did  not  pay  or  tender 
the  freight-charges.  These  are  all  the  facts  upon  which  the 
court  based  its  conclusions  of  title  and  right  of  possession  in  the 
plaintiffs.  The  first  finding  shows  a  passage  of  the  title  from 
plaintiffs  to  Conner  &  Co. ;  and  a  reinvestment  in  plaintiffs  of 
title  and  right  of  possession  is  claimed  only  by  virtue  of  an  exer- 
cise of  the  right  of  stoppage  in  transitu.  Now,  the  mere  insol- 
vency of  the  vendee  does  not  of  itself  amount  to  a  stoppage  in 
transitu;  there  must  be  some  act  on  the  part  of  the  vendor  indica- 
tive of  his  intention  to  repossess  himself  of  the  goods.  1  Parsons 
on  Contr.  478 ;  2  Kent,  543,  and  cases  cited  in  notes.  Actual 
seizure  of  the  goods  before  they  come  into  the  hands  of  the  ven- 
dee is  not  essential.  A  demand  of  the  carrier,  or  notice  to  him 
to  stop  the  goods,  or  a  claim  and  endeavor  to  get  the  possession, 
is  sufficient.  No  particular  form  of  notice  and  demand  is  re- 
quired. See  same  authorities.  This  right  can  be  exercised  only 
during  the  transit,  and  before  delivery,  actual  or  constructive, 
to  the  vendee.  But  a  seizure  by  an  officer  under  legal  process 
in  favor  of  some  other  creditor  does  not  destroy  the  right.  Smith 
V.  Goss,  1  Camp.  (N.  P.),  282;  Buckley  v.  Furniss,  15  Wend. 
137;  Aguirre  v.  Parmelee,  22  Conn.  473;  Wood  v.  Yeatman, 
15  B.  Monr.  270.  Demand  must  be  made  of  the  party  in  posses- 
sion. It  is  not  sufficient  to  make  demand  of  the  vendee.  White- 
head V.  Anderson,  9  M.  &  W.  519 ;  Mottram  v.  Heyer,  5  Denio, 
629.  Applying  these  rules  to  the  facts  of  this  case  and  it  appears 
that  the  transit  had  not  ended;  the  goods  were  in  possession  of 
an  officer  holding  legal  process  in  favor  of  another  creditor;  de- 
mand was  made  of  the  party  in  actual  possession.  It  would 
seem  therefore  that  the  right  of  stoppage  in  transitu  was  not 
gone,  and  that  the  plaintiffs  took  the  necessary  steps  to  assert 

294 


EUCKER  V.  DONOVAN.  §§78 

that  right.  But  it  is  insisted  by  counsel  that  this  stoppage  in 
transitu  is  simply  the  exercise  of  a  lien  by  the  seller,  and  not  a 
rescission  of  the  sale;  that  the  petition  alleges  absolute  owner- 
ship while  the  findings  only  show  the  existence  of  a  lien,  a 
variance  that  is  fatal  to  the  action.  It  must  be  conceded  that 
the  great  weight  of  authority  supports  the  claim  of  counsel  in 
reference  to  the  nature  of  stoppage  in  transitu,  though  there 
is  far  from  absolute  unanimity  on  the  question.  But  it  does 
not  appear  that  any  objection  was  made  to  proof  of  this  kind 
of  interest  in  the  property  under  the  general  allegation  of  owner- 
ship ;  no  motion  for  a  new  trial  was  made,  nor  does  it  appear 
that  the  attention  of  the  District  Court  was  called  to  this  va- 
riance, and  it  is  one  of  those  discrepancies  which  under  almost 
any  circumstances  might  properly  be  corrected  at  the  trial  by 
an  amendment  of  the  petition.  As  it  does  not  appear  by  ex- 
ception or  otherwise  that  the  findings  are  against  the  evidence, 
we  could  not  order  a  new  trial,  but  must  direct  the  judgment 
that  ought  to  be  entered.  It  does  not  seem  to  us  therefore  that 
we  ought  to  disturb  the  judgment  upon  that  ground. 

One  question  more  remains  for  consideration.  The  constable 
paid  the  freight-charges  when  he  took  possession  of  the  goods 
from  the  carrier.  These  charges  were  neither  paid  nor  tendered 
to  him  before  the  suit  was  commenced.  Who  then  had  the  right 
of  possession  at  that  time?  Clearly  the  officer.  The  lien  for 
charges  was  prior  to  the  claims  of  creditors,  or  the  rights  of  the 
vendor,  2  Kent,  541 ;  Oppenheim  v.  Russell,  3  Bos.  &  Pul.  42. 
The  carrier's  possession  could  not  be  disturbed  until  they  were 
paid.  The  officer  was  justified  in  paying  them,  and  having 
paid  them  was  substituted  to  all  the  rights  of  the  carrier.  Be- 
fore his  possession  then  could  be  disturbed  he  must  be  reim- 
bursed the  money  by  him  thus  advanced.  Now,  the  gist  of  the 
action  of  replevin  is  the  right  of  possession.  Town  of  LeRoy 
V.  McConnell,  8  Kan.  273.  Of  course,  questions  of  title  may 
also  arise,  but  the  action  can  never  be  maintained  against  any 
one  having  the  right  of  possession.  The  constable  having  the 
right  of  possession  was  entitled  to  judgment.  He  should  not  be 
subject  to  the  expenses  of  a  litigation  which  was  not  rightfully 
commenced.  The  law  will  protect  the  possession  in  him  until 
these  charges  are  paid.  Having  retained  the  property,  the  value 
of  this  possession  need  not  and  could  not  properly  be  determined, 
nor  could  any  judgment  be  rendered  for  the  return  of  the  prop- 
erty, or  the  recovery  of  the  value  thereof,  or  the  value  of  the 
possession.  All  that  could  properly  be  done  was  to  render 
judgment  in  his  favor  for  costs.  Such  a  judgment,  upon  this 
ground  alone,  we  are  compelled  to  direct  the  District  court  to 

295 


§§  78,  79    EIGHTS  AND  DUTIES  OF  COMMON  CAEEIEE. 

enter,  and  the  case  will  be  remanded  for  that  purpose.  We 
have  in  this  opinion  discussed  questions  other  than  the  one 
necessary  to  be  considered,  in  order  that  there  might  be  no  dis- 
pute hereafter  as  to  the  matters  decided  and  disposed  of  be- 
tween these  parties  by  this  case. 
All  the  Justices  concurring. 


^79.     NEW  JERSEY  STEAM  NAVIGATION  CO.  V.  MER- 
CHANTS' BANK  OF  BOSTON, 

6  Howard  (U.  8.)  343.    1848. 

Mr,  Justice  Nelson.  This  is  an  appeal  from  the  Circuit  Court 
of  the  United  States,  held  in  and  for  the  District  of  Rhode 
Island,  in  a  suit  originally  commenced  in  the  District  Court  in 
admiralty,  and  in  which  the  Merchants'  Bank  of  Boston  were 
the  libellants,  and  the  New  Jersey  Steam  Navigation  Company 
the  respondents. 

The  suit  was  instituted  upon  a  contract  of  affreightment,  for 
the  purpose  of  recovering  a  large  amount  of  specie  lost  in  the 
Lexington,  one  of  the  steamers  of  the  respondents  running  be- 
tween New  York  and  Providence,  which  took  fire  and  was  con- 
sumed, on  the  night  of  the  13th  of  January,  1840,  on  Long 
Island  Sound,  about  four  miles  off  Huntington  lighthouse,  and 
between  forty  and  fifty  miles  from  the  former  city. 

The  District  Court  dismissed  the  libel  pro  forma,  and  entered 
a  decree  accordingly.  An  appeal  was  taken  to  the  Circuit  Court, 
where  this  decree  of  dismissal  was  reversed,  and  a  decree  en- 
tered for  the  libellants  for  the  sum  of  $22,224,  with  costs  of 
suit. 

The  case  is  now  before  this  court  for  review. 

William  F.  Harnden,  a  resident  of  Boston,  was  engaged  in 
the  business  of  carrying  for  hire  small  packages  of  goods,  specie, 
and  bundles  of  all  kinds,  daily,  for  any  persons  choosing  to 
employ  him,  to  and  from  the  cities  of  Boston  and  New  York, 
using  the  public  conveyances  between  these  cities  as  the  mode 
of  transportation.  For  this  purpose,  he  had  entered  into  an 
agreement  with  the  respondents  on  the  5th  of  August,  1839, 
by  which,  in  consideration  of  $250  per  month,  to  be  paid  month- 
ly, they  agreed  to  allow  him  the  privilege  of  transporting  in 
their  steamers  between  New  York  and  Providence  a  wooden 
crate  of  the  dimensions  of  five  feet  by  five  feet  in  width  and 
height,  and  six  feet  in  length,  (contents  unknown,)  until  the 
31st  of  December  following,  subject  to  these  conditions : — 

296 


N.  J.  S.  NAV.  CO.  V.  MEECHANTS'  BANK.  §  79 

1.  The  crate  with  its  contents  to  be  at  all  times  exclusively 
at  the  risk  of  said  Harnden,  and  the  respondents  not  in  any 
event  to  be  responsible,  either  to  him  or  his  employers,  for  the 
loss  of  any  goods,  wares,  merchandise,  money,  &c.,  to  be  con- 
veyed or  transported  by  him  in  said  crate,  or  otherwise  in  the 
boats  of  said  company. 

2.  That  he  should  annex  to  his  advertisements  published  in 
the  public  prints  the  following  notice,  and  which  was,  also,  to 
be  annexed  to  his  receipts  of  goods  or  bills  of  lading : — 

"Take  notice. — ^William  F.  Harnden  is  alone  responsible  for 
the  loss  or  injury  of  any  articles  or  property  committed  to  his 
care;  nor  is  any  risk  assumed  by,  nor  can  any  be  attached  to, 
the  proprietors  of  the  steamboats  in  which  his  crate  may  be  and 
is  transported,  in  respect  to  it  or  its  contents,  at  any  time." 

This  arrangement  expired  on  the  31st  of  December,  1839,  but 
was  on  that  day  renewed  for  another  year,  and  was  in  existence 
at  the  time  of  the  loss  in  question. 

A  few  days  previous  to  the  loss  of  the  Lexington,  the  libel- 
lants  employed  Harnden  in  Boston  to  collect  from  the  banks  in 
the  city  of  New  York  checks  and  drafts  to  the  amount  of  about 
$46,000,  which  paper  was  received  by  him  and  forwarded  to  his 
agent  in  that  city,  with  directions  to  collect  and  send  home  the 
same  in  the  usual  way.  Eighteen  thousand  dollars  of  this  sum 
was  put  in  the  crate  on  board  of  that  vessel  on  the  13th  of  Janu- 
ary, for  the  purpose  of  being  conveyed  to  the  libellants,  and 
was  on  board  at  the  time  she  was  lost,  on  the  evening  of  that 
day. 

Upon  this  statement  of  the  case,  three  objections  have  been 
taken  by  the  respondents  to  the  right  of  the  libellants  to  re- 
cover : — 

1.  That  the  suit  is  not  maintainable  in  their  names.  That, 
if  accountable  at  all  for  the  loss,  they  are  accountable  to  Harn- 
den, with  whom  the  contract  for  carrying  the  specie  was  made. 

2.  That  if  the  suit  can  be  maintained  in  the  name  of  the  li- 
bellants, they  must  succeed,  if  at  all,  through  the  contract  with 
Harnden,  which  contract  exempts  them  from  all  responsibility 
as  carriers  of  the  specie ;  and, 

3.  That  the  District  Court  had  no  jurisdiction,  the  contract 
of  affreightment  not  being  the  subject  of  admiralty  cognizance. 

We  shall  examine  these  several  objections  in  their  order. 

I.  As  to  the  right  of  the  libellants  to  maintain  the  suit. 

They  had  employed  Harnden  to  collect  checks  and  drafts  on 
the  banks  in  the  city  of  New  York,  and  to  bring  home  the  pro- 
ceeds in  specie.  He  had  no  interest  in  the  money,  or  in  the 
contract  with  the  respondents  for  its  conveyance,  except  what 

297 


§  79  EIGHTS  AND  DUTIES  OF  COMMON  CAKEIEK. 

was  derived  from  the  possession  in  the  execution  of  his  agency. 
The  general  property  remained  in  the  libellants,  the  real  own- 
ers, subject  at  all  times  to  their  direction  and  control;  and  any 
loss  that  might  happen  to  it  in  the  course  of  the  shipment  would 
fall  upon  them. 

This  would  be  clearly  so  if  Harnden  is  to  be  regarded  as  a 
private  agent;  and  even  if  in  the  light  of  a  common  carrier  of 
this  description  of  goods,  the  result  would  not  be  changed,  so 
far  as  relates  to  the  right  of  property. 

The  carrier  has  a  lien  on  the  goods  for  his  freight,  if  not  paid 
in  advance;  but  subject  to  this  claim  he  can  set  up  no  right  of 
property  or  of  possession  against  the  general  owners.  (Story 
on  Bailments,  §  93,  g.) 

(After  deciding  that  the  action  was  properly  brought  in  the 
name  of  libellants.) 

The  cases  are  numerous  in  which  the  general  owner  has  sus- 
tained an  action  of  tort  against  the  wrong-doer  for  injuries  to 
the  property  while  in  the  hands  of  the  bailee.  The  above  cases 
show  that  it  may  be  equally  well  sustained  for  a  breach  of  con- 
tract entered  into  between  the  bailee  and  a  third  person.  The 
court  look  to  the  substantial  parties  in  interest,  with  a  view 
to  avoid  circuity  of  action;  saving,  at  the  same  time,  to  the  de- 
fendant all  the  rights  belonging  to  him  if  the  suit  had  been  in 
the  name  of  the  agent. 

We  think,  therefore,  that  the  action  was  properly  brought  in 
the  name  of  the  libellants. 

II.  The  next  question  is  as  to  the  duties  and  liabilities  of  the 
respondents,  as  carriers,  upon  their  contract  with  Harnden.  As 
the  libellants  claim  through  it,  they  must  affirm  its  provisions, 
so  far  as  they  may  be  consistent  with  law. 

The  general  liability  of  the  carrier,  independently  of  any 
special  agreement,  is  familiar.  He  is  chargeable  as  an  insurer 
of  the  goods,  and  accountable  for  any  damage  or  loss  that  may 
happen  to  them  in  the  course  of  the  conveyance,  unless  arising 
from  inevitable  accident, — in  other  w^rds,  the  act  of  God  or 
the  public  enemy.  The  liability  of  the  respondents,  therefore, 
would  be  undoubted,  were  it  not  for  the  special  agreement  un- 
der which  the  goods  were  shipped. 

The  question  is,  to  what  extent  has  this  agreement  qualified 
the  common  law  liability? 

We  lay  out  of  the  case  the  notices  published  by  the  respond- 
ents, seeking  to  limit  their  responsibility,  because, — 

1.  The  carrier  cannot  in  this  way  exonerate  himself  from 
duties  which  the  law  has  annexed  to  his  employment ;  and, 

2.  The  special  agreement  with  Harnden  is  quite  as  compre- 

298 


N.  J.  S.  NAV.  CO.  V.  MEKCHANTS '  BANK.  §  79 

hensive  in  restricting  their  obligation  as  any  of  the  published 
notices. 

A  question  has  been  made,  whether  it  is  competent  for  the  car- 
rier to  restrict  his  obligation  even  by  a  special  agreement.  It 
was  very  fully  considered  in  the  case  of  Gould  and  others  v. 
Hill  and  others,  2  Hill,  623,  and  the  conclusion  arrived  at  that 
he  could  not.  See  also  Hollister  v.  Nowlen,  19  Wend.  240,  32 
Am.  D.  455,  and  Cole  v.  Goodwin,  ib.  272,  282,  32  Am.  D.  470. 

As  the  extraordinary  duties  annexed  to  his  employment  con- 
cern only,  in  the  particular  instance,  the  parties  to  the  trans- 
action, involving  simply  rights  of  property, — the  safe  custody 
and  delivery  of  the  goods, — we  are  unable  to  perceive  any 
well-founded  objection  to  the  restriction,  or  any  stronger  reasons 
forbidding  it  than  exist  in  the  case  of  any  other  insurer  of 
goods,  to  which  his  obligation  is  analogous;  and  which  depends 
altogether  upon  the  contract  between  the  parties. 

The  owner,  by  entering  into  the  contract,  virtually  agrees, 
that,  in  respect  to  the  particular  transaction,  the  carrier  is  not 
to  be  regarded  as  in  the  exercise  of  his  public  employment; 
but  as  a  private  person,  who  incurs  no  responsibility  beyond 
that  of  an  ordinary  bailee  for  hire,  and  answerable  only  for  mis- 
conduct or  negligence. 

The  right  thus  to  restrict  the  obligation  is  admitted  in  a  large 
class  of  cases  founded  on  bills  of  lading  and  charter-parties, 
where  the  exception  to  the  common  law  liability  (other  than 
that  of  inevitable  accident)  has  been,  from  time  to  time,  en- 
larged, and  the  risk  diminished,  by  the  express  stipulation  of 
the  parties.  The  right  of  the  carrier  thus  to  limit  his  liability 
in  the  shipment  of  goods  has,  we  think,  never  been  doubted. 

But  admitting  the  right  thus  to  restrict  his  obligation,  it  by 
no  means  follows  that  he  can  do  so  by  any  act  of  his  own.  He 
is  in  the  exercise  of  a  sort  of  public  office,  and  has  public  duties 
to  perform,  from  which  he  should  not  be  permitted  to  exonerate 
himself  without  the  assent  of  the  parties  concerned.  And  this 
is  not  to  be  implied  or  inferred  from  a  general  notice  to  thp 
public,  limiting  his  obligation,  which  may  or  may  not  be  as- 
sented to.  He  is  bound  to  receive  and  carry  all  the  goods  of- 
fered for  transportation,  subject  to  all  the  responsibilities  inci- 
dent to  his  employment,  and  is  liable  to  an  action  in  case  of 
refusal.  And  we  agree  with  the  court  in  the  case  of  Hollister 
V.  Nowlen,  that,  if  any  implication  is  to  be  indulged  from  the 
delivery  of  the  goods  under  the  general  notice,  it  is  as  strong 
that  the  owner  intended  to  insist  upon  his  rights,  and  the  duties 
of  the  carrier,  as  it  is  that  he  assented  to  their  qualification. 

The  burden  of  proof  lies  on  the  carrier,  and  nothing  short 

299 


§  79  EIGHTS  AND  DUTIES  OF  COMMON  CAREIER. 

of  an  express  stipulation  by  parol  or  in  writing  should  be  per- 
mitted to  discharge  him  from  duties  which  the  law  has  an- 
nexed to  his  employment.  The  exemption  from  these  duties 
should  not  depend  upon  implication  or  inference,  founded  on 
doubtful  and  conflicting  evidence;  but  should  be  specific  and 
certain,  leaving  no  room  for  controversy  between  the  parties. 

The  special  agreement,  in  this  case,  under  which  the  goods 
were  shipped,  provided  that  they  should  be  conveyed  at  the 
risk  of  Harnden;  and  that  the  respondents  were  not  to  be  ac- 
countable to  him  or  to  his  employers,  in  any  event,  for  loss  or 
damage. 

The  language  is  general  and  broad,  and  might  very  well  com- 
prehend every  description  of  risk  incident  to  the  shipment.  But 
we  think  it  would  be  going  farther  than  the  intent  of  the  parties, 
upon  any  fair  and  reasonable  construction  of  the  agreement, 
were  we  to  regard  it  as  stipulating  for  wilful  misconduct,  gross 
negligence,  or  want  of  ordinary  care,  either  in  the  seaworthiness 
of  the  vessel,  her  proper  equipments  and  furniture,  or  in  her 
management  by  the  master  and  hands. 

This  is  the  utmost  effect  that  was  given  to  a  general  notice, 
both  in  England  and  in  this  country,  when  allowed  to  restrict 
the  carrier's  liability,  although  as  broad  and  absolute  in  its 
terms  as  the  special  agreement  before  us  (Story  on  Bailm. 
§  570)  ;  nor  was  it  allowed  to  exempt  him  from  accountability 
for  losses  occasioned  by  a  defect  in  the  vehicle,  or  mode  of  con- 
veyance used  in  the  transportation.     (13  Wend.  611,  627,  628.) 

Although  he  was  allowed  to  exempt  himself  from  losses  aris- 
ing out  of  events  and  accidents  against  which  he  was  a  sort  of 
insurer,  yet,  inasmuch  as  he  had  undertaken  to  carry  the  goods 
from  one  place  to  another,  he  was  deemed  to  have  incurred  the 
same  degree  of  responsibility  as  that  which  attaches  to  a  private 
person,  engaged  casually  in  the  like  occupation,  and  was,  there- 
fore, bound  to  use  ordinary  care  in  the  custody  of  the  goods, 
and  in  their  delivery,  and  to  provide  proper  vehicles  and  means 
of  conveyance  for  their  transportation. 

This  rule,  we  think,  should  govern  the  construction  of  the 
agreement  in  question. 

If  it  is  competent  at  all  for  the  carrier  to  stipulate  for  the 
gross  negligence  of  himself,  and  his  servants  or  agents,  in  the 
transportation  of  the  goods,  it  should  be  required  to  be  done, 
at  least,  in  terms  that  would  leave  no  doubt  as  to  the  meaning 
of  the  parties. 

The  respondents  having  succeeded  in  restricting  their  liabil- 
ity as  carriers  by  the  special  agreement,  the  burden  of  prov- 
ing that  the  loss  was  occasioned  by  the  want  of  due  care,  or 

300 


N.  J.  S.  NAV.  CO.  V.  MERCHANTS '  BANK.  §  70 

by  gross  negligence,  lies  on  the  libellants,  which  would  be  other- 
wise in  the  absence  of  any  such  restriction.  We  have  accord- 
ingly looked  into  the  proofs  in  the  case  with  a  view  to  the  ques- 
tion. 

There  were  on  board  the  vessel  one  hundred  and  fifty  bales 
of  cotton,  part  of  which  was  stowed  away  on  and  along  side 
of  the  boiler-deck,  and  around  the  steam-chimney,  extending 
to  within  a  foot  or  a  foot  and  a  half  of  the  casing  of  the  same, 
which  was  made  of  pine,  and  was  itself  but  a  few  inches  from 
the  chimney.  The  cotton  around  the  chimney  extended  from 
the  boiler  to  within  a  foot  of  the  upper  deck. 

The  fire  broke  out  in  the  cotton  next  the  steam-chimney,  be- 
tween the  two  decks,  at  about  half  past  seven  o'clock  in  the 
evening,  and  was  discovered  before  it  had  made  much  progress. 
If  the  vessel  had  been  stopped,  a  few  buckets  of  water,  in  all 
probability,  would  have  extinguished  it.  No  effort  seems  to 
have  been  made  to  stop  her,  but,  instead  thereof,  the  wheel  was 
put  hard  a-port,  for  the  purpose  of  heading  her  to  the  land.  In 
this  act,  one  of  the  wheel-ropes  parted,  being  either  burnt  or 
broken,  in  consequence  of  which  the  hands  had  no  longer  any 
control  of  the  boat. 

Some  of  them  then  resorted  to  the  fire-engine,  but  it  was 
found  to  be  stowed  away  in  one  place  in  the  vessel,  and  the 
hose  belonging  to  it,  and  without  which  it  was  useless,  in 
another,  and  which  was  inaccessible  in  consequence  of  the  fire. 

They  then  sought  the  fire-buckets.  Two  or  three  only,  in  all, 
could  be  found,  and  but  one  of  them  properly  prepared  and 
fitted  with  heaving  lines;  and,  in  the  emergency,  the  specie- 
boxes  were  emptied,  and  used  to  carry  water. 

The  act  of  Congress  (5  Statutes  at  Large,  306,  §  9)  made  it 
the  duty,  at  the  time,  of  these  respondents  to  provide,  as  a  part, 
of  the  necessary  furniture  of  the  vessel,  a  suction-hose  and  fire- 
engine,  and  hose  suitable  to  be  worked  in  case  of  fire,  and  to 
carry  the  same  on  every  trip,  in  good  order;  and  further  pro- 
vided, that  iron  rods  or  chains  should  be  employed  and  used  ini 
the  navigation  of  steamboats,  instead  of  wheel  or  tiller  ropes. 

This  latter  provision  was  wholly  disregarded  on  board  the  ves-" 
sel  during  the  trip  in  question ;  and  the  former  also,  as  we  have 
seen,  for  all  practical  or  useful  purposes. 

"We  think  there  was  great  want  of  care,  and  which  amounted 
to  gross  negligence,  on  the  part  of  the  respondents,  in  the 
stowage  of  the  cotton;  especially,  regarding  its  exposure  to  fire 
from  the  condition  of  the  covering  of  the  boiler-deck,  and  the 
casing  of  the  steam  chimney.  The  former  had  been  on  fire  on 
the  previous  trip,  and  a  box  of  goods  partly  consumed.    Also, 

301 


i 


§§  79,  80    EIGHTS  AND  DUTIES  OF  COMMON  CAKRIEE. 

for  the  want  of  proper  furniture  and  equipments  of  the  vessel, 
as  required  by  the  act  of  Congress,  as  well  as  by  the  most  pru- 
dential considerations. 

(After  deciding  that  the  court  had  jurisdiction.) 

It  is,  indeed,  difficult,  on  studying  the  facts,  to  resist  the 
conclusion,  that,  if  there  had  been  no  fault  on  board  in  the 
particulars  mentioned,  and  the  emergency  had  been  met  by  the 
officers  and  crew  with  ordinary  firmness  and  deliberation,  the 
terrible  calamity  that  befell  the  vessel  and  nearly  all  on  board 
would  have  been  arrested. 

We  are  of  opinion,  therefore,  that  the  respondents  are  liable 
for  the  loss  of  the  specie,  notwithstanding  the  special  agree- 
ment under  which  it  was  shipped. 

Upon  the  whole,  without  pursuing  the  examination  farther, 
we  are  satisfied  that  the  decision  of  the  Circuit  Court  below 
was  correct,  and  that  its  decree  should  be  affirmed. 

Justices  Catron,  Daniel  and  Woodbury  also  delivered  opin- 
ions.       ,     ,  w . 

80.     CHICAGO   AND    NORTHWESTERN    RAILWAY   CO., 

APPELLANT,  V.  THE  PEOPLE  EX  REL. 

HEMPSTEAD, 

56  III.  365;  8  Am.  R.  690.    1870. 

Lawrence,  C.  J.  This  was  an  application  for  a  mandamus,  on 
the  relation  of  the  owners  of  the  Illinois  river  elevator,  a  grain 
warehouse  in  the  city  of  Chicago,  against  the  Chicago  and  North- 
western Railroad  Company.  The  relators  seek  by  the  writ  to 
compel  the  railway  company  to  deliver  to  said  elevator  whatever 
grain  in  bulk  may  be  consigned  to  it  upon  the  line  of  its  road. 
There  was  a  return  duly  made  to  the  alternative  writ,  a  de- 
murrer to  the  return,  and  a  judgment  pro  forma  upon  the  de- 
murrer, directing  the  issuing  of  a  peremptory  writ.  From  that 
judgment  the  railway  company  has  prosecuted  an  appeal. 
The  facts  as  presented  by  the  record  are  briefly  as  follows : 
The  company  has  freight  and  passenger  depots  on  the  west  side 
of  the  north  branch  of  the  Chicago  river,  north  of  Kinzie  street, 
for  the  use,  as  we  understand  the  record  and  the  maps  which  are 
made  a  part  thereof,  of  the  divisions  known  as  the  Wisconsin 
and  ]\Iilwaukee  division  of  the  road,  running  in  a  north-westerly 
direction.  It  also  has  depots  on  the  east  side  of  the  north  branch, 
for  the  use  of  the  Galena  division,  running  westerly.     It  has 

302 


C.  AND  N.  W.  E.  CO.  v.  THE  PEOPLE.  §  80 

also  a  depot  on  the  south  branch,  near  Sixteenth  street,  which  it 
reaches  by  a  track  diverging  from  the  Galena  line,  on  the  west 
side  of  the  city.  The  map  indicates  a  line  running  north  from 
Sixteenth  street  the  entire  length  of  West  Water  street,  but  we 
do  not  understand  the  relators  to  claim  their  elevator  should  be 
approached  by  this  line,  as  the  respondent  has  no  interest  in 
this  line  south  of  Van  Buren  street. 

Under  an  ordinance  of  this  city,  passed  August  10,  1858,  the 
Pittsburgh,  Fort  Wayne  and  Chicago  company,  and  the  Chi- 
cago, St.  Paul  and  Fond  du  Lac  company  (now  merged  in  the 
Chicago  and  Northwestern  company),  constructed  a  track  on 
West  Water  street,  from  Van  Buren  street  north  to  Kinzie 
street,  for  the  purpose  of  forming  a  connection  between  the 
two  roads.  The  Pittsburgh,  Fort  Wayne  and  Chicago  company 
laid  the  track  from  Van  Buren  to  Randolph  street,  and  the  Chi- 
cago, St.  Paul  and  Fond  du  Lac  company  that  portion  of  the 
track  from  Randolph  north  to  its  own  depot.  These  different 
portions  of  the  track  were,  however,  constructed  by  these  two 
companies,  by  an  arrangement  between  themselves,  the  precise 
character  of  which  does  not  appear,  but  it  is  to  be  inferred  from 
the  record  that  they  have  a  common  right  to  the  use  of  the  track 
from  Van  Buren  street  to  Kinzie,  and  do,  in  fact,  use  it  in 
common.  The  elevator  of  the  relators  is  situated  south  of  Ran- 
dolph street  and  north  of  Van  Buren,  and  is  connected  with  the 
main  track  by  a  side  track  laid  by  the  Pittsburgh  company,  at 
the  request  and  expense  of  the  owners  of  the  elevator,  and  con- 
nected at  each  end  with  the  main  track. 

Since  the  10th  of  August,  1866,  the  Chicago  and  Northwestern 
company,  in  consequence  of  certain  arrangements  and  agree- 
ments on  and  before  that  day  entered  into  between  the  com- 
pany and  the  owners  of  certain  elevators  known  as  the  Galena, 
Northwestern,  Munn  &  Scott,  Union,  City,  ]\Iunger  and  Armor, 
and  Wheeler,  has  refused  to  deliver  grain  in  bulk  to  any  ele- 
vator except  those  above  named.  There  is  also  in  force  a  rule 
of  the  company,  adopted  in  1864,  forbidding  the  carriage  of 
grain  in  bulk  if  consigned  to  any  particular  elevator  in  Chicago, 
thus  reserving  to  itself  the  selection  of  the  warehouse  to  which 
the  grain  should  be  delivered.  The  rule  also  provides  that  grain 
in  bags  shall  be  charged  an  additional  price  for  transportation. 
This  rule  is  still  in  force. 

The  situation  of  these  elevators,  to  which  alone  the  company 
will  deliver  grain,  is  as  follows:  The  Northwestern  is  situated 
near  the  depot  of  the  Wisconsin  division  of  the  road,  north  of 
Kinzie  street ;  the  Munn  &  Scott  on  West  Water  street,  between 
the  elevator  of  relators  and  Kinzie  street;  the  Union  and  City 

303 


§  so  EIGHTS  AND  DUTIES  OF  COMMON  CAKEIEE. 

near  Sixteenth  street,  and  approached  only  by  the  track  diverg- 
ing from  the  Galena  division,  on  the  west  side  of  the  city,  al- 
ready mentioned;  and  the  others  are  on  the  east  side  of  the 
north  branch  of  the  Chicago  river.  The  Munn  &  Scott  elevator 
can  be  reached  only  by  the  line  laid  on  West  Water  street  under 
the  city  ordinance  already  mentioned;  and  the  elevator  of  re- 
lators is  reached  in  the  same  way,  being  about  four  and  a  half 
blocks  further  south.  The  line  of  the  Galena  division  of  the 
road  crosses  the  line  on  West  Water  street  at  nearly  a  right 
angle,  and  thence  crosses  the  North  Branch  on  a  bridge.  It 
appears  by  the  return  to  the  writ  that  a  car  coming  into  Chi- 
cago on  the  Galena  division,  in  order  to  reach  the  elevator  of 
relators,  would  have  to  be  taken  by  a  draw-bridge  across  the 
river  on  a  single  track,  over  which  the  great  mass  of  the  busi- 
ness of  the  Galena  division  is  done,  then  backed  across  the  river 
again  upon  what  is  known  as  the  Milwaukee  division  of  re- 
spondent's road,  thence  taken  to  the  track  on  West  Water  street, 
and  the  cars,  when  unloaded,  could  only  be  taken  back  to  the 
Galena  division  by  a  similar,  but  reversed,  process,  thus  neces- 
sitating the  passage  of  the  draw-bridge,  with  only  a  single  line, 
four  times,  and,  as  averred  in  the  return,  subjecting  the  com- 
pany to  great  loss  of  time  and  pecuniary  damage  in  the  delay 
that  would  be  caused  to  its  regular  trains  and  business  on  that 
division. 

This  seems  so  apparent  that  it  cannot  be  fairly  claimed  the 
elevator  of  relators  is  upon  the  line  of  the  Galena  division,  in 
any  such  sense  as  to  make  it  obligatory  upon  the  company  to  de- 
liver upon  West  Water  street  freight  coming  over  that  division  of 
the  road.  The  doctrine  of  The  Vincent  case,  in  49  111.,  was,  that  a 
railway  company  must  deliver  grain  to  any  elevator  which  it 
had  allowed,  by  a  switch,  to  be  connected  with  its  own  line. 
This  rule  has  been  re-affirmed  in  an  opinion  filed  at  the  present 
term,  in  the  case  of  The  People  ex  rel,  Hempstead  v.  The  Chicago 
and  Alton  Railroad  Co.,  55  111.  95.  But  in  the  last  case  we 
have  also  held  that  a  railway  company  cannot  be  compelled  to 
deliver  beyond  its  own  line,  simply  because  there  are  connect- 
ing tracks  over  which  it  might  pass  by  paying  track  service, 
but  which  it  has  never  made  a  part  of  its  own  line  by  use. 

So  far  as  we  can  judge  from  this  record,  and  the  maps  show- 
ing the  railway  lines  and  connections,  filed  as  a  part  thereof, 
the  Wisconsin  and  Milwaukee  divisions,  running  north-west, 
and  the  Galena  division,  running  west,  though  belonging  to  the 
same  corporation  and  having  a  common  name,  are,  for  the  pur- 
poses of  transportation,  substantially  different  roads,  constructed 
under  different  charters,  and  the  track  on  West  Water  street 

304 


C.  AND  N.  W.  K.  CO.  v.  THE  PEOPLE.  §  80 

seems  to  have  been  laid  for  the  convenience  of  the  Wisconsin 
and  Milwaukee  divisions.  It  would  be  a  harsh  and  unreason- 
able application  of  the  rule  announced  in  The  Vincent  case, 
and  a  great  extension  of  the  rule  beyond  any  thing  said  in  that 
case,  if  we  were  to  hold  that  these  relators  could  compel  the 
company  to  deliver,  at  their  elevator,  grain  which  has  been 
transported  over  the  Galena  division,  merely  because  the  de- 
livery is  physically  possible,  though  causing  great  expense  to 
the  company  and  a  great  derangement  of  its  general  business, 
and  though  the  track  on  West  Water  street  is  not  used  by  the 
company  in  connection  with  the  business  of  the  Galena  division. 

What  we  have  said  disposes  of  the  case  so  far  as  relates  to  the 
delivery  of  grain  coming  over  the  Galena  division  of  respond- 
ent 's  road.  As  to  such  grain  the  mandamus  should  not  have  been 
awarded. 

When,  however,  we  examine  the  record  as  to  the  connection 
between  the  relators'  elevator  and  the  Wisconsin  and  Milwaukee 
divisions  of  respondent's  road,  we  find  a  very  different  state  of 
facts.  The  track  on  West  Water  street  is  a  direct  continuation 
of  the  line  of  the  Wisconsin  and  Milwaukee  division;  cars  com- 
ing on  this  track  from  these  divisions  do  not  cross  the  river. 
The  Munn  &  Scott  elevator,  to  which  the  respondent  delivers 
grain,  is,  as  already  stated,  upon  a  side  track  connected  with 
this  track.  The  respondent  not  only  uses  this  track  to  deliver 
grain  to  the  Munn  &  Scott  elevator,  but  it  also  delivers  lumber 
and  other  freight  upon  this  track,  thus  making  it  not  only 
legally,  but  actually,  by  positive  occupation,  a  part  of  its  road. 
The  respondent,  in  its  return,  admits,  in  explicit  terms,  that 
it  has  an  equal  interest  with  the  Pittsburg,  Fort  Wayne  and 
Chicago  railroad  in  the  track  laid  in  West  Water  street.  It  also 
admits  its  use,  and  the  only  allegation  made  in  the  return  for  the 
purpose  of  showing  any  difficulty  in  delivering  to  relators'  ele- 
vator the  grain  consigned  thereto  from  the  Wisconsin  and  Mil- 
waukee divisions,  is  that  those  divisions  connect  with  the  line 
on  West  Water  street  only  by  a  single  track,  and  that  respond- 
ent cannot  deliver  bulk  grain  or  other  freight  to  the  elevator  of 
relators,  even  from  those  divisions,  without  large  additional  ex- 
pense, caused  by  the  loss  of  the  use  of  motive  power,  labor  of 
servants,  and  loss  of  use  of  cars,  w^hile  the  same  are  being  de- 
livered and  unloaded  at  said  elevator  and  brought  back.  As  a 
reason  for  non-delivery  on  the  ground  of  difficulty,  this  is  simply 
frivolous.  The  expense  caused  by  the  loss  of  the  use  of  motive 
power,  labor  and  cars,  while  the  latter  are  being  taken  to  their 
place  of  destination  and  unloaded,  is  precisely  the  expense  for 
which  the  company  is  paid  its  freight.  It  has  constructed  this 
20  305 


§  so  EIGHTS  AND  DUTIES  OF  COMMON  CAERIEE. 

line  on  "West  Water  street  in  order  to  do  the  very  work  which 
it  now,  in  general  terms,  pronounces  a  source  of  large  additional 
expense;  yet  it  does  not  find  the  alleged  additional  expense  an 
obstacle  in  the  way  of  delivering  grain  upon  this  track  at  the 
warehouse  of  Munn  &  Scott,  or  delivering  other  freights  to 
other  persons  than  the  relators.  Indeed,  it  seems  evident,  from 
the  diagrams  attached  to  the  record,  that  three  of  the  elevators, 
to  which  the  respondent  delivers  grain,  are  more  difficult  of 
access  than  that  of  the  relators,  and  three  of  the  others  have 
no  appreciable  advantage  in  that  respect,  if  not  placed  at  a 
decided  disadvantage,  by  the  fact  that  they  can  be  reached  only 
by  crossing  the  river. 

We  presume,  however,  from  the  argument,  that  the  respond- 
ent's counsel  place  no  reliance  upon  this  allegation  of  additional 
expense,  so  far  as  the  Wisconsin  and  Milwaukee  divisions  are 
concerned.  They  rest  the  defense  on  the  contracts  made  between 
the  company  and  the  elevators  above  named,  for  exclusive  deliv- 
ry  to  the  latter,  to  the  extent  of  their  capacity.  This  brings  us 
to  the  most  important  question  in  the  case.  Is  a  contract  of  this 
character  a  valid  excuse  to  the  company  for  refusing  to  deliver 
grain  to  an  elevator  upon  its  lines,  and  not  a  party  to  the  con- 
tract, to  which  such  grain  has  been  consigned  ? 

In  the  oral  argiunent  of  this  case  it  was  claimed,  by  counsel 
for  the  respondent,  that  a  railway  company  was  a  mere  private 
corporation,  and  that  it  was  the  right  and  duty  of  its  directors 
to  conduct  its  business  merely  with  reference  to  the  pecuniary 
interests  of  the  stockholders.  The  printed  arguments  do  not 
go  to  this  extent,  in  terms,  but  they  are  colored  throughout  by 
the  same  idea,  and  in  one  of  them  we  find  counsel  applying 
to  the  supreme  court  of  the  United  States,  and  the  supreme 
court  of  Pennsylvania,  language  of  severe,  and  almost  contemptu- 
ous, disparagement,  because  those  tribunals  have  said,  that  "a 
common  carrier  is  in  the  exercise  of  a  sort  of  public  office." 
N.  J.  Steam  Nav.  Co.  v.  Merch.  Bank,  6  How.  381 ;  Sandford  v. 
Railroad  Co.,  24  Penn.  380,  If  the  language  is  not  critically 
accurate,  perhaps  we  can  pardon  these  courts,  when  we  find 
that  substantially  the  same  language  was  used  by  Lord  Holt, 
in  Coggs  V.  Bernard,  2  Ld.  Raym.  909,  the  leading  case  in  all 
our  books  on  the  subject  of  bailments.  The  language  of  that 
case  is,  that  the  common  carrier  "exercises  a  public  employ- 
ment. ' ' 

We  shall  engage  in  no  discussion  in  regard  to  names.  It  is 
immaterial  whether  or  not  these  corporations  can  be  properly 
said  to  be  in  the  exercise  of  "a  sort  of  public  office,"  or  whether 
they  are  to  be  styled  private,  or  quasi  public  corporations.    Cer- 

306 


C.  AND  N.  W.  E.  CO.  v.  THE  PEOPLE.  §  80 

tain  it  is,  that  they  owe  some  important  duties  to  the  pul^lic, 
and  it  only  concerns  us  now  to  ascertain  the  extent  of  these 
duties  as  regards  the  ease  made  upon  this  record. 

It  is  admitted  by  respondent's  counsel,  that  railway  com- 
panies are  common  carriers,  though  even  that  admission  is  some- 
what grudgingly  made.  Regarded  merely  as  a  common  carrier 
at  common  law,  and  independently  of  any  obligations  imposed 
by  the  acceptance  of  its  charter,  it  would  owe  important  duties 
to  the  public,  from  which  it  could  not  release  itself,  except  with 
the  consent  of  every  person  who  might  call  upon  it  to  perform 
them.  Among  these  duties,  as  well  defined  and  settled  as  any- 
thing in  the  law,  was  the  obligation  to  receive  and  carry  goods, 
for  all  persons  alike,  without  injurious  discrimination  as  to 
terms,  and  to  deliver  them  in  safety  to  the  consignee,  unless 
prevented  by  the  act  of  God  or  the  public  enemy.  These  obli- 
gations grew  out  of  the  relation  voluntarily  assumed  by  the 
carrier  toward  the  public,  and  the  requirements  of  public  policy, 
and  so  important  have  they  been  deemed,  that  eminent  judges 
have  often  expressed  their  regret  that  common  carriers  have 
ever  been  permitted  to  vary  their  common-law  liability,  even 
by  a  special  contract  with  the  OAvner  of  the  goods. 

Regarded,  then,  merely  as  a  common  carrier  at  common  law, 
the  respondent  should  not  be  permitted  to  say,  it  will  deliver 
goods  at  the  warehouse  of  A  and  B,  but  will  not  deliver  at  the 
warehouse  of  C,  the  latter  presentihg  equal  facilities  for  the  dis- 
charge of  freight,  and  being  accessible  on  respondent's  line. 

But  railway  companies  may  well  be  regarded  as  under  a  higher 
obligation,  if  that  were  possible,  than  that  imposed  by  the 
common  law,  to  discharge  their  duties  to  the  public  as  common 
carriers  fairly  and  impartially.  As  has  been  said  by  other 
courts,  the  State  has  endowed  them  with  something  of  its  own 
sovereignty,  in  giving  them  the  right  of  eminent  domain.  By 
virtue  of  this  power,  they  take  the  lands  of  the  citizen  against 
his  will  and  can,  if  need  be,  demolish  his  house.  Is  it  supposed 
these  great  powers  Avere  granted  merely  for  the  private  gain  of 
the  corporators?  On  the  contrary,  we  all  know  the  companies 
were  created  for  the  public  good. 

The  object  of  the  legislature  was  to  add  to  the  means  of  travel 
and  commerce.  If,  then,  a  common  carrier  at  common  law  came 
under  obligations  to  the  public  from  which  he  could  not  dis- 
charge himself  at  his  own  volition,  still  less  should  a  railway 
company  be  permitted  to  do  so,  when  it  was  created  for  the  pub- 
lic benefit  and  has  received  from  the  public  such  extraordinary 
privileges.  Railway  charters  not  only  give  a  perpetual  existence 
and  great  power,  but  they  have  been  constantly  recognized  by 

307 


§  80  EIGHTS  AND  DUTIES  OF  COMMON  CARRIEE. 

the  courts  of  this  country  as  contracts  between  the  companies 
and  the  State,  imposing  reciprocal  obligations. 

The  courts  have  always  been,  and  we  trust  always  will  be, 
ready  to  protect  these  companies  in  their  chartered  rights,  but, 
on  the  other  hand,  we  should  be  equally  ready  to  insist  that  they 
perform  faithfully  to  the  public  those  duties  which  were  the 
object  of  their  chartered  powers. 

We  are  not,  of  course,  to  be  understood  as  saying  or  inti- 
mating, that  the  legislature,  or  the  courts,  may  require  from 
a  railway  company  the  performance  of  any  and  all  acts  that 
might  redound  to  the  public  benefit,  without  reference  to  the 
pecuniary  welfare  of  the  company  itself.  We  hold,  simply,  that 
it  must  perform  all  those  duties  of  a  common  carrier  to  which 
it  knew  it  would  be  liable  when  it  sought  and  obtained  its  char- 
ter, and  the  fact  that  the  public  has  bestowed  upon  it  extraor- 
dinary powers  is  but  an  additional  reason  for  holding  it  to  a 
complete  performance  of  its  obligations. 

The  duty  sought  to  be  enforced  in  this  proceeding  is  the  de- 
livery of  grain  in  bulk  to  the  warehouse  to  which  it  is  consigned, 
such  warehouse  being  on  the  line  of  the  respondent's  road,  with 
facilities  for  its  delivery  equal  to  those  of  the  other  warehouses 
at  which  the  company  does  deliver,  and  the  carriage  of  grain  in 
bulk  being  a  part  of  its  regular  business.  This,  then,  is  the 
precise  question  decided  in  The  Vincent  case,  49  111.,  and  it  is 
unnecessary  to  repeat  what  was  there  said.  We  may  remark, 
however,  that,  as  the  argument  of  counsel  necessarily  brought 
that  case  under  review,  and  as  it  was  decided  before  the  reorgani- 
zation of  this  court  under  the  new  constitution,  the  court  as 
now  constituted  has  re-examined  that  decision,  and  fully  con- 
curs therein.  That  case  is  really  decisive  of  the  present,  so  far 
as  respects  grain  transported  on  the  Wisconsin  and  Milwaukee 
divisions  of  respondent's  road.  The  only  difference  between 
this  and  the  Vincent  case  is,  in  the  existence  of  the  contract  for 
exclusive  delivery  to  the  favored  warehouses,  and  this  contract 
can  have  no  effect  when  set  up  against  a  person  not  a  party  to 
it,  as  an  excuse  for  not  performing  toward  such  person  those 
duties  of  a  common  carrier  prescribed  by  the  common  law,  and 
declared  by  the  statute  of  the  State. 

The  contract  in  question  is  peculiarly  objectionable  in  its 
character,  and  peculiarly  defiant  of  the  obligations  of  the  re- 
spondent to  the  public  as  a  common  carrier.  If  the  principle 
implied  in  it  were  conceded,  the  railway  companies  of  the  State 
might  make  similar  contracts  with  individuals  at  every  impor- 
tant point  upon  their  lines,  and  in  regard  to  other  articles  of 
commerce  besides  grain,  and  thus  subject  the  business  of  the 

308 


C.  AND  N.  W.  R.  CO.  v.  THE  PEOPLE.  §  80 

State  almost  wholly  to  their  control,  as  a  means  of  their  own 
emolument.  Instead  of  making  a  contract  with  several  elevators, 
as  in  the  present  case,  each  road  that  enters  Chicago  might  con- 
tract with  one  alone,  and  thus  give  to  the  owner  of  such  ele- 
vator an  absolute  and  complete  monopoly  in  the  handling  of 
all  the  grain  that  might  be  transported  over  such  road.  So  too, 
at  every  important  town  in  the  interior,  each  road  might  con- 
tract that  all  the  lumber  carried  by  it  should  be  consigned  to  a 
particular  yard.  How  injurious  to  the  public  would  be  the  crea- 
tion of  such  a  system  of  organized  monopolies  in  the  most  im- 
portant articles  of  commerce,  claiming  existence  under  a  per- 
petual charter  from  the  State,  and,  by  the  sacredness  of  such 
charter,  claiming  also  to  set  the  legislative  will  itself  at  defiance, 
it  is  hardly  worth  while  to  speculate.  It  would  be  difficult  to 
exaggerate  the  evil  of  which  such  a  system  would  be  the  cause, 
when  fully  developed,  and  managed  by  unscrupulous  hands. 

Can  it  be  seriously  doubted  whether  a  contract,  involving  such 
a  principle  and  such  results,  is  in  conflict  with  the  duties  which 
the  company  owes  to  the  public  as  a  common  carrier?  The  fact 
that  a  contract  has  been  made  is  really  of  no  moment,  because, 
if  the  company  can  bind  the  public  by  a  contract  of  this  sort, 
it  can  do  the  same  thing  by  a  mere  regulation  of  its  own,  and 
say  to  these  relators  that  it  will  not  deliver  at  their  warehouse 
the  grain  consigned  to  them,  because  it  prefers  to  deliver  it 
elsewhere.  The  contract,  if  vicious  in  itself,  so  far  from  excus- 
ing the  road,  only  shows  that  the  policy  of  delivering  grain  exclu- 
sively at  its  chosen  warehouses  is  a  deliberate  policy  to  be 
followed  for  a  term  of  years,  during  which  these  contracts  run. 

It  is,  however,  ^rged  very  strenuously  by  counsel  for  the  re- 
spondent, that  a  common  carrier,  in  the  absence  of  contract,  is 
bound  to  carry  and  deliver  only  according  to  the  custom  and 
usage  of  his  business ;  that  it  depends  upon  himself  to  establish 
such  custom  and  usage;  and  that  the  respondent,  never  having 
held  itself  out  as  a  carrier  of  grain  in  bulk,  except  upon  the 
condition  that  it  may  itself  choose  the  consignee,  this  has  become 
the  custom  and  usage  of  its  business,  and  it  cannot  be  required 
to  go  beyond  this  limit.  In  answer  to  this  position,  the  fact 
that  the  respondent  has  derived  its  life  and  powers  from  the 
people,  through  the  legislature,  comes  in  with  controlling  force. 
Admit,  if  the  respondent  were  a  private  association,  which  had 
established  a  line  of  wagons  for  the  purpose  of  carrying  grain 
from  the  Wisconsin  boundary  to  the  elevator  of  Munn  &  Scott, 
in  Chicago,  and  had  never  offered  to  carry  or  deliver  it  else- 
where, that  it  could  not  be  compelled  to  depart  from  the  custom 
or  usage  of  its  trade.     Still  the  admission  does  not  aid  the  re- 

309 


§  80  EIGHTS  AND  DUTIES  OF  COMMON  CAEEIER. 

spondent  in  this  case.  In  the  case  supposed,  the  carrier  would 
establish  the  terminal  points  of  his  route  at  his  own  discretion, 
and  could  change  them  as  his  interests  might  demand.  He  oiTers 
himself  to  the  public  only  as  a  common  carrier  to  that  extent, 
and  he  can  abandon  his  first  line  and  adopt  another  at  his  own 
volition.  If  he  should  abandon  it,  and,  instead  of  offering  to 
carry  grain  only  to  the  elevator  of  Munn  &  Scott,  should  offer 
to  carry  it  generally  to  Chicago,  then  he  would  clearly  be  obliged 
to  deliver  it  to  any  consignee  in  Chicago  to  whom  it  might  be 
sent,  and  to  whom  it  could  be  delivered,  the  place  of  delivery 
being  upon  his  line  of  carriage. 

In  the  case  before  us,  admitting  the  position  of  counsel  that  a 
common  carrier  establishes  his  own  line  and  terminal  points, 
the  question  arises,  at  wdiat  time  and  how  does  a  railway  com- 
pany establish  them?  We  answer,  when  it  accepts  from  the 
legislature  the  charter  which  gives  it  life,  and  by  virtue  of  such 
acceptance.  That  is  the  point  of  time  at  which  its  obligations 
begin.  It  is  then  that  it  holds  itself  out  to  the  world  as  a  com- 
mon carrier,  whose  business  will  begin  as  soon  as  the  road  is 
constructed  upon  the  line  which  the  charter  has  fixed.  Suppose 
this  respondent  had  asked  from  the  legislature  a  charter  authoriz- 
ing it  to  carry  grain  in  bulk,  to  be  delivered  only  at  the  elevator 
of  Munn  &  Scott,  and  nowhere  else  in  the  city  of  Chicago.  Can 
any  one  suppose  such  charter  would  have  been  granted?  The 
supposition  is  preposterous.  But,  instead  of  a  charter  making 
a  particular  elevator  the  terminus  and  place  of  delivery,  the 
legislature  granted  one  which  made  the  city  of  Chicago  itself 
the  terminus,  and  when  this  charter  was  accepted  there  at  once 
arose,  on  the  part  of  the  respondent,  the  corresponding  obliga- 
tion to  deliver  grain  at  any  point  within  the  city  of  Chicago, 
upon  its  lines,  with  suitable  accommodations  for  receiving  it, 
to  which  such  grain  might  be  consigned.  Perhaps  grain  in 
bulk  was  not  then  carried  in  cars,  and  elevators  may  not  have 
been  largely  introduced.  But  the  charter  was  granted  to  pro- 
mote the  conveniences  of  commerce,  and  it  is  the  constant  duty 
of  the  respondent  to  adapt  its  agencies  to  that  end.  When  these 
elevators  were  erected  in  Chicago,  to  which  the  respondent's 
line  extended,  it  could  only  carry  out  the  obligations  of  its 
charter  by  receiving  and  delivering  to  each  elevator  whatever 
grain  might  be  consigned  to  it,  and  it  is  idle  to  say  such  obliga- 
tion can  be  evaded  by  the  claim  that  such  delivery  has  not  been 
the  custom  or  usage  of  respondent.  It  can  be  permitted  to 
establish  no  custom  inconsistent  with  the  spirit  and  object  of 
its  charter. 

It  is  claimed  by  counsel  that  the  charter  of  respondent  au- 

310 


C.  AND  N.  W.  R.  CO.  v.  THE  PEOPLE.  §  80 

thorizes  it  to  make  such  contracts  and  regulations  as  might  be 
necessary  in  the  transaction  of  its  business.  But  certainly  we 
cannot  suppose  the  legislature  intended  to  authorize  the  making 
of  such  rules  or  contracts  as  would  defeat  the  very  object  it 
had  in  view  in  granting  the  charter.  The  company  can  make 
such  rules  and  contracts  as  it  pleases,  not  inconsistent  with  its 
duties  as  a  common  carrier,  but  it  can  go  no  further,  and  any 
general  language  which  its  charter  may  contain  must  neces- 
sarily be  construed  with  that  limitation.  In  the  case  of  The 
City  of  Chicago  v.  Rumpff,  45  111.  94,  this  court  held  a  clause 
in  the  charter,  giving  the  common  council  the  right  to  control 
and  regulate  the  business  of  slaughtering  animals,  did  not  au- 
thorize the  city  to  create  a  monopoly  of  the  business,  under  pre- 
tense of  regulating  and  controlling  it. 

It  is  unnecessary  to  speak  particularly  of  the  rule  adopted  by 
the  company  in  reference  to  the  transportation  of  grain.  What 
we  have  said  in  regard  to  the  contract  applies  equally  to  the 
rule. 

The  principle  that  a  railroad  company  can  make  no  injurious 
or  arbitrary  discrimination  between  individuals,  in  its  dealings 
with  the  public,  not  only  commends  itself  to  our  reason  and 
sense  of  justice,  but  is  sustained  by  adjudged  cases.  In  Eng- 
land, a  contract  which  admitted  to  the  door  of  a  station,  within 
the  yard  of  a  railway  company,  a  certain  omnibus,  and  ex- 
cluded another  omnibus  was  held  void.  Marriott  v.  L.  &  S.  W. 
R.  Co.,  87  Eng.  Com.  Law,  498. 

In  Carton  v.  Bristol  &  Exeter  Eailroad  Company,  95  Eng. 
Com.  Law,  641,  it  was  held  that  a  contract  with  certain  iron 
mongers  to  carry  their  freight  for  a  less  price  than  that  charged 
the  public  was  illegal,  no  good  reason  for  the  discrimination 
being  shown. 

In  Crouch  v.  The  L.  &  N.  W.  R.  Co.,  78  Eng.  Com.  Law.  254, 
it  was  held  a  railway  company  could  not  make  a  regulation  for 
the  conveyance  of  goods  which,  in  practice,  affected  one  individ- 
ual only. 

In  Sandford  v.  Railroad  Company,  24  Penn.  382,  the  court 
held  that  the  power  given  in  the  charter  of  a  railway  company 
to  regulate  the  transportation  of  the  road  did  not  give  the  right 
to  grant  exclusive  privileges  to  a  particular  express  company. 
The  court  say:  "If  the  company  possesses  this  power,  it  might 
build  up  one  set  of  men  and  destroy  others,  advance  one  kind 
of  business  and  break  down  another,  and  make  even  religion  and 
politics  the  tests  in  the  distribution  of  its  favors.  The  rights 
of  the  people  are  not  subject  to  any  such  corporate  control." 

We  refer  also  to  Rogers'  Locomotive  Works  v.  Erie  R.  R. 

311 


§§  80,  81     EIGHTS  AND  DUTIES  OF  COMMON  CAEKIER. 

Co.,  20  N.  J.  Eq.  380,  and  State  v.  Hartford  &  N.  H.  R.  Co.,  29 
Conn.  538. 

It  is  insisted  by  counsel  for  the  respondent  that,  even  if  the 
relators  have  just  cause  of  complaint,  they  cannot  resort  to  the 
writ  of  mandamus.  We  are  of  opinion,  however,  that  they  can 
have  an  adequate  remedy  in  no  other  way,  and  that  the  writ 
will,  therefore,  lie. 

The  judgment  of  the  court  below  awarding  a  peremptory  man- 
damus must  be  reversed,  because  it  applies  to  the  Galena  division 
of  respondent's  road  as  well  as  to  the  Wisconsin  and  Milwau- 
kee division.  If  it  had  applied  only  to  the  latter,  we  should 
have  affirmed  the  judgment.  The  parties  have  stipulated  that, 
in  case  of  reversal,  the  case  shall  be  remanded,  with  leave  to 
the  relators  to  traverse  the  return.  We,  therefore,  make  no 
final  order,  but  remand  the  case,  with  leave  to  both  parties  to 
amend  their  pleadings,  if  desired,  in  view  of  what  has  been  said 
in  this  opinion. 

Judgment  reversed. 


81.     JUDSON  V.  WESTERN  RAILROAD  CORPORATION, 

4  Allen  (Mass.)  520;  81  Am.  D.  718.     1862. 

Action  on  a  contract  of  carriage  for  goods  lost  by  fire  in  de- 
fendant's warehouse. 

By  Court,  Merrick,  J.  It  is,  undoubtedly,  a  general  rule 
that  the  liability  of  a  common  carrier  for  goods  received  by 
him  begins  as  soon  as  they  are  delivered  to  him,  his  agents  or 
servants,  at  the  place  appointed  or  provided  for  their  reception, 
when  they  are  in  a  fit  and  proper  condition  and  ready  for  im- 
mediate transportation:  Redfield  on  Railways,  246.  But  like 
all  other  general  rules,  it  is  subject  to  modifications  resulting 
from  the  express  stipulations  of  the  parties,  or  from  the  course 
and  usages  of  trade  and  business.  And  as  it  sometimes  happens 
that  a  party  is  at  once  a  warehouseman  and  a  carrier,  and  that 
goods  received  by  him  are  lost  and  destroyed  before  they  are 
put  in  itinere,  a  very  important  question  may  in  such  case 
arise,  whether  the  receiver  is  liable  in  the  one  or  the  other  ca- 
pacity ;  for  his  responsibility  is  not  co-extensive  in  each  of  those 
relations:  Story  on  Bailments,  sec.  535.  This  must  always  be 
a  question  of  fact  to  be  determined  upon  proof  of  the  actual 
and  surrounding  circumstances,  the  material  point  of  inquiry 
being  whether  the   one   or  the   other   character   predominated 

312 


JUDSON  V.  WESTERN  E.  R.  COEPOEATION.  §  81 

in  the  particular  stage  of  the  transaction  when  the  disaster 
occurred:  Id.,  sec.  536.  There  are  well-settled  rules  which 
will  afford  some  aid  in  the  solution  of  such  a  question.  If  a 
common  carrier  receives  goods  into  his  own  warehouse  for  the 
accommodation  of  himself  and  his  customers,  so  that  the  de- 
posit there  is  a  mere  accessory  to  the  carriage,  and  for  the  pur- 
pose of  facilitating  it,  his  liability  as  a  carrier  will  commence 
with  the  receipt  of  the  goods :  Id.,  sec.  536 ;  Fitchburg  and  Wor- 
cester R.  R.  V.  Hanna,  6  Gray,  539,  66  Am.  Dec.  427.  But  on 
the  contrary,  if  the  goods,  when  so  deposited,  are  not  ready  for 
immediate  transportation,  and  the  carrier  cannot  make  ar- 
rangements for  their  carriage  to  the  place  of  destination  until 
something  further  is  done,  or  some  further  direction  is  given  or 
communication  made  concerning  them,  by  the  owner  or  con- 
signor, the  deposit  must  be  considered  to  be  in  the  mean  time 
for  his  convenience  and  accommodation,  and  the  receiver,  until 
some  change  takes  place,  will  be  responsible  only  as  a  warehouse- 
man. 

These  being  the  rules  by  which  the  rights  of  the  parties  are 
to  be  determined,  it  can  of  course  make  no  difference  by  whom 
the  property  is  delivered,  whether  it  be  by  the  owner  himself,  or 
by  his  agent  or  servant,  nor  whether  that  agent  be  himself  a 
carrier  or  acts  in  any  other  capacity.  It  is  the  paramount  dutj' 
of  a  common  carrier  to  receive  and  carry  all  goods  offered 
him  for  transportation,  upon  the  payment  or  tender  of  a  suit- 
able fare  or  compensation;  and  he  must  so  receive  them,  by 
whomsoever  they  are  brought  to  the  place  where  he  makes  ar- 
rangements to  receive  them  for  transportation :  Story  on  Bail- 
ments, sec.  508.  It  is  upon  this  principle,  where  no  special 
obligation  is  imposed  by  acts  of  legislation,  that  one  corpora- 
tion whose  railroad  connects  with  or  is  near  to  the  termination 
of  the  railroad  of  another  corporation  is  obliged  to  accept  and 
receive  for  transportation  any  goods  which  may  be  brought  and 
tendered  to  it  by  the  servants  of  the  latter.  But  in  this  as  in 
all  other  cases  the  party  bringing  the  goods  must  first  do  what- 
ever is  essential  to  enable  the  carrier  to  commence  or  to  make 
needful  preparations  for  commencing  the  service  required  of 
him,  before  he  can  be  made  liable  or  subjected  to  responsibility 
in  that  capacity.  When  goods  are  received  by  a  railroad  com- 
pany which  are  to  be  transported  to  a  place  beyond  their  owe 
road  over  a  railroad  which  connects  with  theirs,  or  over  suc- 
cessive roads  or  lines  of  transportation,  each  company  will  be 
responsible  for  them  while  in  its  own  possession,  and  will  not 
be  liable  for  any  loss  which  may  occur  after  a  due  delivery  of 
them  upon  another  line  and  to  another  carrier :    Nutting  v.  Con- 

313 


I  81  EIGHTS  AND  DUTIES  OF  COMMON  CAEEIER. 

necticiit  River  R.  K,  1  Gray,  502.  If  after  being  once  laden 
for  carriage  they  are  transported  over  successive  roads  in  the 
same  car  or  vehicle  without  being  shifted  or  changed  from  one 
to  another,  the  successive  carriers,  as  they  severally  receive 
them,  will  be  liable  for  the  goods  in  that  capacity  as  soon  as 
delivered ;  so  that  during  the  whole  transit  or  journey  some  one 
will  be  constantly  liable  for  them  as  a  common  carrier.  But  it 
is  otherwise  when  one  has  performed  his  whole  duty  as  a  carrier, 
and  has  relieved  himself  from  all  liability  in  that  capacity,  by 
depositing  the  goods  at  the  end  of  the  journey  in  h-is  own  ware- 
house, from  which  they  are  to  be  taken  by  the  owner  or  con- 
signee, or  by  other  carriers  who  are  to  continue  the  transporta- 
tion to  a  still  distant  point.  In  such  case,  the  liability  of  a 
warehouseman  will  succeed,  and  will  continue  until  they  come 
into  the  possession  of  some  one  who  is  responsible  as  a  common 
carrier :  Norway  Plains  Co.  v.  Boston  and  Maine  R.  R.,  1  Gray, 
263,  61  Am.  Dec.  423 ;  Garside  v.  Trent  and  Mersey  Nav.  Co.,  4 
Term.  Rep.  581 ;  Hyde  v.  Trent  and  Mersey  Nav.  Co.,  5  Id.  389 ; 
Denny  v.  New  York  Cent.  R.  R.,  13  Gray,  481,  74  Am.  Dec.  645. 
And  so  it  may  occur  that  one  party  will  be  liable  only  as  a  ware- 
houseman after  he  shall  have  completed  all  the  services  in  the 
way  of  transportation  which  can  be  required  of  him,  and  another 
liable  only  in  the  same  relation  before  the  further  transporta- 
tion has  commenced,  or  before  he  has  become  responsible  in 
another  and  distinct  relation. 

In  applying  these  principles  to  the  facts  which  were  devel- 
oped upon  the  trial  of  the  present  action,  there  is  no  difficulty 
in  determining  what  are  the  rights  and  obligations  of  the  parties. 
From  the  statements  in  the  bill  of  exceptions,  it  appears  that 
the  plaintiff's  goods,  contained  in  two  boxes  marked  "G.  C. 
Judson,  Springfield,  Mass.,  by  railroad,"  were  delivered  at 
Fonda  in  the  state  of  New  York,  to  the  New  York  Central  Rail- 
road Company  for  transportation.  That  company  gave  to  the 
plaintiff  upon  receiving  the  goods  a  "shipping  receipt,"  by  the 
terms  of  which  they  agreed  to  transport  them  to  their  ware- 
house at  Albany,  to  be  there  delivered  to  the  party  then  entitled 
to  receive  them.  The  defendants'  road  was  the  connecting  line 
over  which  the  transportation  of  the  goods  was  to  be  continued 
to  the  plaintiff  at  Springfield.  But  the  two  railroads  do  not 
unite  by  coming  into  any  actual  connection  with  each  other. 
The  former  terminates  at  its  freight-house  in  the  city  of  Al- 
bany on  the  western  side,  and  the  latter  terminates  at  its 
freight-house  on  the  eastern  side  of  the  Hudson  River.  So  that 
goods  which  are  brought  over  the  road  of  the  former  company, 
and  are  to  be  carried  forward  to  some  point  or  station  on  the 

314 


JUDSON  V.  WESTEEN  K.  E.  COEPOEATION.  §  81 

road  of  the  latter,  must  be  unladen  from  the  cars  in  which  they 
are  brought  to  Albany,  and  carried  across  the  river  and  de- 
posited in  the  freight-house  of  the  Western  railroad,  and  there 
be  again  laden  in  their  cars.  While  remaining  in  their  ware- 
house, the  goods  may  therefore  be  in  their  possession  as  ware- 
housemen. Whether  they  are  liable  in  that  capacity,  or  as  com- 
mon carriers,  must  be  determined  upon  the  facts  relating  to 
each  particular  transaction. 

It  appears  from  the  evidence  produced  at  the  trial  that  by 
the  course  of  business  between  these  two  roads  it  is  the  prac- 
tice of  the  Central  road,  upon  the  arrival  of  freight  from  points 
on  the  line  of  its  road  destined  for  points  on  the  line  of  the 
Western  Railroad,  to  make  out  bills  called  expense  bills,  con- 
taining the  freight  charges  of  the  Central  road  upon  each 
parcel  or  lot  of  freight,  and  to  send  the  goods  by  carmen  with 
the  expense  bills  across  the  river  to  the  freight-house  of  the 
Western  railroad,  where  the  goods  are  compared  by  the  agents 
of  the  latter  road,  and  if  found  to  be  correct,  are  checked  and 
handed  to  a  clerk,  who  enters  them  on  the  books  of  freight 
received,  from  which  the  way-bills  are  made  out.  Upon  the 
arrival  of  the  plaintiffs'  goods  at  Albany,  they  were  sent  across 
the  river  by  the  New  York  Central  Railroad  Company  in  the 
usual  manner,  and  were  delivered  at  the  freight-house  of  the 
defendants  at  the  usual  place  of  depositing  such  freight,  and 
notice  thereof  was  given  to  their  proper  servants.  Upon  the 
question  whether  the  expense  bills  were  delivered  to  any  such 
agent  or  servant  before  the  loss  and  destruction  of  the  goods 
by  the  fire,  which  occurred  while  they  remained  in  the  freight 
house,  the  evidence  was  conflicting  and  contradictory.  The 
defendants  requested  the  court  to  instruct  the  jury,  that  in 
view  of  the  course  of  business  and  usage  between  the  two  roads, 
although  the  goods  were  delivered  to  the  proper  agent  of  the 
defendants,  yet  if  the  expense  bills  were  not  also  delivered  before 
the  occurrence  of  the  fire  by  which  they  were  destroyed,  the  goods 
were  not  in  condition  for  immediate  transportation,  and  the  de- 
fendants were  therefore  liable  only  in  their  capacity  ^is  ware- 
housemen.   To  this  request  the  court  declined  to  accede. 

The  general  instructions  which  were  given  to  the  jury  re- 
specting the  liability  of  the  defendants  and  the  capacity  in 
which  they  were  liable,  whether  as  carriers  or  as  warehouse- 
men, were  correct.  But  it  is  apparent  from  the  uncontested 
evidence  in  the  case  that  according  to  the  usage  and  the  gen- 
eral course  of  business,  and  from  the  regulations  established 
by  the  two  companies,  until  the  expense  bill  was  furnished  to 
the  defendants,  the  goods  delivered  at  their  ii'cight-station  were 

315 


§  81  EIGHTS  AND  DUTIES  OF  COMMON  CAEEIER. 

not  in  condition  for  immediate  transportation.  That  docu- 
ment was  indispensably  necessary  to  them,  to  enable  them  to 
undertake  the  transportation  of  the  goods.  It  was  indispensa- 
ble in  order  to  identify  the  package  or  parcel  to  be  carried,  and 
also  to  show  the  amount  of  the  lien  upon  them  in  favor  of  the 
Central  company  for  the  previous  transportation  from  Fonda 
to  Albany,  and  for  which,  upon  accepting  them,  the  defend- 
ants, by  the  usage  between  the  two  companies,  would  become 
responsible;  and  it  afforded  the  only  means  by  which  they 
could  make  out  their  own  freight-bill,  or  know  what  disposition 
was  to  be  made  of  the  goods,  or  what  was  the  place  of  destina- 
tion to  which  they  were  to  be  carried.  Until  that  instrument 
was  sent  to  them,  they  could  make  no  arrangement  for  the  trans- 
portation of  the  goods;  and  because  they  were  not,  for  want  of 
it,  ready  to  be  immediately  transported,  the  defendants  could 
only  suffer  the  boxes  to  remain  in  the  freight-house  for  the 
convenience  and  accommodation  of  the  owner  or  consignor,  until 
he  or  his  agents  should  give  them  the  information  and  direc- 
tions which  were  indispensable  to  enable  them  to  take  any 
action  in  reference  to  the  goods.  In  the  mean  time,  from  the 
very  nature  and  provisions  of  the  arrangement  adopted  by  the 
two  companies,  the  defendants  necessarily  held  and  had  pos- 
session of  the  goods  merely  as  warehousemen;  for  they  could, 
under  such  circumstances,  have  charge  of  them  only  in  their 
latter  capacity.  If  the  expense  bill  was  delivered  to  them 
simultaneously  with  the  delivery  of  the  goods,  or  if  afterwards 
and  before  the  occurrence  of  the  fire  by  which  they  were  de- 
stroyed it  had  been  duly  delivered  to  any  of  their  agents  or  ser- 
vants, the  goods  would  have  been  in  condition  for  immediate 
transportation,  and  their  liability  as  carriers  would  thereupon 
have  at  once  attached.  But  before  that  was  done,  their  re- 
sponsibility was  of  a  different  and  more  limited  character.  The 
instructions  asked  for  ought,  therefore,  to  have  been  given  to 
the  jury,  who  would  thereby  have  been  brought  directly  to  the 
determination  of  the  question  in  controversy  between  the  parties, 
and  respecting  w^hich  the  evidence  was  conflicting  and  contra- 
dictory. If,  upon  that  evidence,  the  jury  should  find  that  the 
expense  bill  was  delivered  to  the  defendants  before  the  fire 
occurred,  they  would  have  been  liable  as  carriers,  but  otherwise 
as  wa.rehousemen  only. 

It  is  obvious  that  in  the  conduct  of  business  of  such  magni- 
tude, and  in  the  care  and  transportation  of  the  great  number 
and  variety  of  goods  and  packages  which  are  continually  pass- 
ing from  one  railroad  to  another  over  any  great  line  of  travel 
and  transportation,   there  must  be  some   general   and   certain 

316 


TATE   V.   YAZOO  AND   MISS.   VAL.   K.   K.   CO.    §§81,82 

and  well-understood  arrangement  between  the  proprietors  of  the 
connecting  roads,  to  avoid  inextricable  confusion,  and  to  enable 
the  carriers  to  protect  both  their  own  rights  and  the  rights  of 
their  customers.  The  arrangement  which  these  two  companies 
made,  and  which  was  fully  proved  at  the  trial,  appears  to  have 
been  a  reasonable  and  necessary  provision;  and  therefore  it 
was  one  to  which  all  parties  were  bound  to  conform;  and  con- 
sequently the  defendants  have  a  right  to  insist  that  their  lia- 
bility shall  not  be  extended  in  any  particular  instance  beyond 
the  obligation  which  such  conformity  imposes  upon  them.  For 
these  reasons,  their  exceptions  to  the  ruling  of  the  court  must 
be  sustained,  and  a  new  trial  ordered. 


82.     TATE  V.  YAZOO  AND  MISSISSIPPI  VALLEY  RAIL- 
ROAD CO., 

78  Miss.  842;  29  So.  R.  392;  84  Am.  St.  E.  649.    1901. 

Action  against  a  carrier  for  a  carload  of  cotton  destroyed  by 
fire.    Judgment  directed  for  defendants. 

Terral,  J.  The  appellee  in  this  case  recovered  judgment 
by  a  peremptory  instruction,  and  the  appellants  insist  that  a 
peremptory  instruction  should  have  been  given  in  their  behalf. 
On  the  28th  of  September,  1897,  the  appellants  loaded  upon  a 
car  of  the  defendant  company,  at  Clack's  station,  twenty-four 
bales  of  cotton.  The  loading  of  the  car  was  finished  after  sun- 
down, and  after  the  local  freight  train  of  that  day,  which  was 
accustomed  to  take  loaded  cars  from  Clack's,  had  passed  on  its 
return  trip  to  Memphis,  and  no  other  local  freight  train,  by 
which  alone  cotton  was  shipped  from  Clack's,  would  arrive  at 
said  station  until  the  evening  of  the  next  succeeding  day.  Early 
on  the  morning  of  the  29th  of  September  the  carload  of  cotton 
was  wholly  consumed  by  fire,  and  this  suit,  being  a  consolidation 
of  five  suits,  is  to  recover  its  value.  Tate  &  Co.  operated  a  pub- 
lie  gin  at  Clack's,  where  the  defendant  company  had  a  siding, 
but  it  had  no  station-house  or  agent  at  that  point.  Japson  and 
Keesee,  who  were  in  charge  of  Tate  &  Co. 's  gin  and  plantation 
at  Clack's,  testified  that  when  it  was  desired  to  ship  cotton, 
one  of  them  would  inform  the  conductor  of  the  local  freight 
train,  and  the  conductor  would  set  out  there  an  empty  car  for 
loading,  and  that  when  the  car  was  loaded  and  readj^  for  trans- 
portation, the  local  freight  train  desired  to  take  the  loaded 

317 


§  82  EIGHTS  AND  DUTIES  OF  COMMON  CAEEIEE. 

car  would  be  flagged,  and  the  conductor  of  it  informed  that 
the  car  was  ready  for  transportation,  when  the  conductor  would 
sign  the  shipper's  loading  account,  if  found  correct,  and  attach 
the  car  to  his  train,  and  transport  it  to  its  destination.  The 
contention  of  the  appellants  is  that  they  had  delivered  the 
twenty-four  bales  of  cotton  to  the  defendant  company,  and  that 
the  cotton  was  burned  while  in  its  custody;  that  the  cotton  was 
actually  or  constructively  delivered  to  the  railway  company, 
and  that  it  is  chargeable  for  the  loss.  We  think,  however,  that 
it  is  quite  clear  that  the  railway  company  had  never  come  into 
possession  of  the  cotton  for  transportation.  The  car,  it  was  true, 
was  the  car  of  the  company,  and  it  was  placed  upon  the  com- 
pany's siding  at  Clack's  for  being  loaded,  and  the  cotton  was 
loaded  into  the  car,  but  no  servant  of  the  company  had  any 
notice  of  the  car  being  loaded  and  ready  for  shipment.  Keesee 
testified  that  his  recollection  was  (the  trial  being  had  some 
time  after  the  loss),  that,  when  the  car  was  loaded,  a  man  was 
left  there  with  it,  with  the  shipping  account  filled  out,  in  order 
to  stop  the  train  and  get  the  conductor's  receipt  for  it.  And  it 
appears  that  the  flagging  of  the  local  freight  train  and  delivery 
of  the  shipper's  loading  account  to  the  conductor  was  an  essen- 
tial feature  of  the  shipping  of  cotton  at  Clack's.  But  Japson 
and  others  conclusively  show  that  the  local  freight  train  for 
that  day  had  already  passed  before  the  car  was  loaded,  and  no 
other  train  that  could  have  been  expected  to  take  the  car  would 
come  by  there  until  after  the  car  was  burned.  There  was  no 
constructive  delivery  of  the  cotton  to  the  railroad  company. 
Its  proper  servant,  the  conductor  of  the  local  freight  train, 
by  which  it  was  desired  to  have  this  cotton  transported,  knew 
nothing  of  its  being  loaded  into  the  car  for  shipment,  and 
there  could  be  no  acceptance  of  the  cotton  for  shipment  with- 
out such  knowledge,  unless,  indeed,  there  had  been  an  agree- 
ment between  the  parties  making  the  mere  loading  of  the  car 
an  acceptance  of  the  freight  for  transportation.  But  no  such 
agreement  was  shown.  On  the  contrary,  the  clear  course  of 
dealing  between  the  parties  at  Clack's  showed  that  the  shipper 
was  to  flag  the  proper  local  freight  train,  and  deliver  to  the 
conductor  of  the  train  the  car  to  be  transported,  with  the  ship- 
per's loading  account  thereof.  A  bill  of  lading  is  not  essential 
to  charge  the  carrier  with  the  duty  of  safely  transporting  the 
property  delivered  for  carriage,  but  the  doing  of  the  several 
acts  entitling  the  shipper  to  a  bill  of  lading  is  necessary  to 
charge  the  carrier  with  the  safety  of  the  articles  intrusted  to 
him.  In  this  case,  according  to  the  course  of  dealing  between 
the  parties,  there  could  have  been  no  delivery  of  the  cotton 

318 


MORGANTON  MPG.  CO.  v.  O.  E.  AND  C.  EY.  CO.  §§  82,83 

to  the  railroad  company,  until  it  was  loaded  and  the  local  freight 
train  conductor  had  notice  of  the  items  of  freight,  its  destina- 
tion and  of  its  readiness  for  transportation.  Parties  desiring 
to  hold  common  carriers  to  a  stricter  responsibility  than  that 
imposed  by  the  common  law  should  provide  therefor  by  con- 
tract, for,  unless  bound  by  contract,  otherwise  a  carrier  is  not 
responsible  for  the  safety  of  articles  intended  for  shipment 
until  a  delivery  of  them  to  him,  and  an  acceptance  thereof, 
and  there  can  be  no  acceptance  until  he  has  knowledge  of  their 
readiness  for  transportation,  and  the  shipper's  desire  therefor: 
Hutchinson  on  Carriers,  c.  4;  Schouler  on  Bailments  and  Car- 
riers, c.  3;  Angell  on  Carriers,  c.  140;  2  Kent's  Commentaries, 
608 ;  Illinois  Cent.  R.  R.  Co.  v.  Smyser,  38  111.  354,  87  Am.  Dec. 
301,  303. 
Affirmed. 


83.    MORGANTON  MANUFACTURING  CO.  V.  OHIO  RIVER 
AND  CHARLESTON  RAILWAY  CO., 

121  N.  G.  514;  28  8.  E.  B.  474;  61  Am.  St.  B.  679.    1897. 

Action  against  a  terminal  carrier  for  injury  to  a  consignment 
of  glass.    Plaintiff  had  judgment. 

Faircloth,  C.  J.  A  box  of  plate  glass  was  shipped  from 
New  York  City  to  Marion,  North  Carolina.  The  Pennsylvania 
Railroad  Company,  the  initial  carrier,  received  and  transferred 
the  case  to  the  Norfolk  &  Western  Road  at  Hagerstown.  Then 
the  car  containing  the  box  was  transferred  at  Roanoke  to  the 
Cape  Fear  &  Yadkin  Valley  road  and  by  them  brought  to  the 
Seaboard  Air  Line  Road  at  Sanford  with  the  seal  of  the  latter 
on  the  car  at  Shelby,  North  Carolina.  At  that  place  the  agent 
of  the  defendant  broke  the  seal  and  checked  off  the  contents  of 
the  car  on  the  waybill  and  examined  the  box  and  found  it  in 
apparent  good  order.  He  said  in  his  testimony  that  there  were 
no  marks  of  rough  usage  on  the  outside  of  the  box — ^that  he  took 
a  copy  of  the  waybill  and  delivered  it  to  the  defendant's  con- 
ductor, who  carried  the  car  and  copy  of  the  waybill  to  Marion, 
and  that  he  (the  agent)  marked  the  waybill  0.  K. ;  also  that  he 
did  not  examine  the  contents  of  the  box,  and  that  his  company 
did  not  require  him  to  give  a  receipt  for  freight  transferred  to 
defendant  from  connecting  lines.  The  defendant's  agent  at 
Marion  testified  that  he  received  the  box,  and  that  the  glass 
was  not  damaged  in  taking  it  off  the  car,  nor  while  it  was  in  the 
depot  at  Marion;  that  ten  days  thereafter  he  and  plaintiff's 

319 


§  83  EIGHTS  AND  DUTIES  OF  COMMON  CAREIEE. 

agent  opened  the  box  and  found  the  glass  badly  damaged.  A 
contractor  and  builder  examined  the  box,  and  said  it  must  have 
fallen  and  struck  something  hard,  causing  the  break  in  the  glass. 

The  agent  of  the  first  carrier  at  New  York  sent  a  bill  of  lading 
with  the  package,  stamped  on  its  face  "Released,"  and  gave  a 
receipt  for  the  box  "in  apparent  good  order  (contents  and  con- 
dition of  contents  unknown)  to  be  transported  to  and  delivered 

at  the  regular  freight  station  of  the  company  at ,  subject 

to  all  the  conditions,"  etc.,  among  which  were  these  words: 
"No  carrier  shall  be  liable  for  loss  or  damage  not  occurring 
on  its  own  road  or  its  portion  of  the  through  route,"  etc.  This 
action  is  against  the  terminal  carrier. 

The  defendant  contends  that  it  is  not  liable  unless  it  be 
shown  that  the  damage  occurred  on  its  line,  and  that  there  is  no 
evidence  that  that  was  so. 

We  understand  "released"  to  mean  exemption  from  the  com- 
mon-law liability  as  an  insurer.  It  seems  to  be  agreed  that 
0.  K.  means  all  right  or  in  good  condition:  Baxter  v.  Ellis,  111 
N.  C.  124.  It  must  be  admitted  that  the  present  system  of  rapid 
transit,  consisting  of  through  lines,  connecting  lines,  associated 
lines,  and  the  like,  makes  it  difficult  in  some  cases  to  locate  the 
line  on  which  the  damage  occurs,  and  it  would  seem  practicable 
for  the  interested  lines  to  make  some  arrangement  for  their  own 
benefit  and  the  public  convenience  by  prorating  the  freight 
charges  and  also  the  damages,  when  they  cannot  be  located,  and 
thereby  avoid  the  inconvenience  of  actual  inspection  at  every 
transfer,  which  would  not  only  be  inconvenient  and  cause  much 
delay  but  serious  loss  to  the  consignee. 

This  case  illustrates  the  difficulty.  The  glass,  being  very 
thick,  could  not  have  been  broken  without  a  severe  jar,  and, 
looking  at  the  evidence,  it  is  scarcely  possible  to  see  where  or 
how  it  occurred. 

The  ease  does  not  fall  within  the  principle  of  Roclvy  IMount 
Mills  V.  Wilmington  etc.  R.  R.  Co.,  119  N.  C.  693,  25  S.  E.  R. 
854,  56  Am.  St.  Rep.  682,  where  it  was  held  that  the  associated 
companies  were  partners,  and  each  one  liable  for  the  negligence 
of  either  of  the  other  lines.  We  are  not  required  to  discuss  the 
liability  of  the  other  lines  which  handled  the  package  of  glass. 
The  first  discovery  of  damage  was  when  the  goods  were  at  the 
terminal  point  of  the  defendant's  line. 

A  bill  of  lading  is  something  more  than  a  simple  receipt.  It 
is  a  receipt  and  a  contract.  As  a  contract,  in  which  the  carrier 
agrees  to  transport  and  deliver  the  goods  to  the  consignee  upon 
the  terms  and  conditions  specified  in  the  instrument,  it  is  a 
merger  of  prior  and  contemporaneous  agreements  of  the  parties. 

320 


MOEGANTOX  ilFG.  CO.  v.  0.  E.  AND  C.  RY.  CO.         §  83 

and,  being  in  writing,  cannot  be  explained  by  parol  evidence, 
and  thereby  change  its  legal  import,  in  the  absence  of  fraud 
or  mistake.  It  also,  by  the  terms  of  the  writing,  as  in  this  case, 
excludes  the  common-law  liability  of  the  carrier,  because  it  is  a 
special  contract  governed  by  its  own  limitations.  The  bill, 
as  a  receipt,  is  an  acknowledgment  of  the  quantity,  character, 
and  condition  of  the  articles  delivered  and  received,  and  as  such 
may  be  explained,  varied,  or  contradicted  like  other  receipts. 
This  exemption  from  the  common-law  liability  may  be  enforced, 
if  it  be  reasonable  and  does  not  involve  exemption  from  negli- 
gence: Ray's  Negligence  of  Imposed  Duties,  93-95;  Pollard  v. 
Vinton,  105  U.  S.  7 ;  Elliott  on  Railroads,  sec.  1415, 

The  defendant's  agent  having  received  the  box  apparently  in 
good  condition  and  marked  the  bill  of  lading  "O.  K."  was  an 
adoption  of  the  terms  and  conditions  specified  in  writing  by  the 
initial  carrier,  and  these  facts  raise  a  rebuttable  presumption 
that  the  damage  occurred  thereafter.  The  defendant  endeavored 
to  meet  and  overcome  this  presumption  with  evidence,  and  went 
to  the  jury  with  his  evidence.  The  court  charged  the  jury  that 
among  connecting  lines  the  carrier,  in  whose  hands  the  prop- 
erty is  found  damaged,  is  presumed  to  have  caused  the  dam- 
age, and  that  the  burden  is  upon  the  defendant  to  rebut  this 
presumption  and  satisfy  the  jury  that  the  glass  was  not  dam- 
aged in  its  possession.  In  response  to  the  inquiry  of  the  jury, 
the  court  charged  them  that,  if  the  condition  of  the  contents 
was  unknown  to  the  defendant,  liability  could  have  been  guarded 
against  by  examination  or  stipulation,  and  that  failure  to  do  so 
was  negligence.  This  we  think  was  correct  according  to  the  au- 
thorities and  the  facts. 

The  instructions  asked  for  by  defendant  were  not  suited  to 
the  facts,  and  ignored  the  presumption  just  pointed  out,  and 
were  properly  refused.  It  has  been  held  that  the  stipulation 
above  stated  is  a  reasonable  one  and  consistent  with  public 
policy:  Phifer  v.  Carolina  Cent.  R.  R.  Co.,  89  N.  C.  311,  45 
Am.  Rep.  687.  It  has  also  been  held  by  this  court  that,  if  the 
contents  and  their  condition  be  unknoMoi,  liability  may  be 
avoided  by  examination  or  by  a  stipulation,  and  that  it  is  negli- 
gence in  a  receiving  line  not  to  observe  these  precautions :  Dixon 
V.  Richmond  etc.  R.  R.  Co.,  74  N.  C.  538. 

Affirmed. 


21  321 


§  84  EIGHTS  AND  DUTIES  OF  COMMON  CAEEIER. 

84.     FRIEDLANDER  V.  TEXAS  AND  PACIFIC  RAILWAY 

CO., 

130  U.  S.  416;  9  S.  Ct.  R.  570.    1888. 

Action  by  plaintiffs  as  assignees  for  value  of  a  bill  of  lading 
for  the  non-delivery  of  cotton.  Defendants'  agent,  Easton,  had 
colluded  with  one  Lahnstein  to  issue  the  bill  of  lading  without 
receiving  any  cotton  for  transportation.  Judgment  for  defend- 
ants. 

Fuller,  C.  J.  The  agreed  statement  of  facts  sets  forth  "that, 
in  point  of  fact,  said  bill  of  lading  of  November  6,  1883,  was 
executed  by  said  E.  D.  Easton,  fraudulently  and  by  collusion 
with  said  Lahnstein  and  without  receiving  any  cotton  for  trans- 
portation, such  as  is  represented  in  said  bill  of  lading,  and 
without  the  expectation  on  the  part  of  the  said  Easton  of  re- 
ceiving any  such  cotton;"  and  it  is  further  said  that  Easton 
and  Lahnstein  had  fraudulently  combined  in  another  case,  where- 
by Easton  signed  and  delivered  to  Lahnstein  a  similar  bill  of 
lading  for  cotton  "which  had  not  been  received,  and  which 
the  said  Easton  had  no  expectation  of  receiving;"  and  also 
' '  that,  except  that  the  cotton  was  not  received  nor  expected  to  be 
received  by  said  agent  when  said  bill  of  lading  was  by  him 
executed  as  aforesaid,  the  transaction  was,  from  first  to  last, 
customary."  In  view  of  this  language,  the  words  "for  trans- 
portation, such  as  is  represented  in  said  bill  of  lading"  cannot 
be  held  to  operate  as  a  limitajtion.  The  inference  to  be  drawn 
from  the  statement  is  that  no  cotton  whatever  was  delivered 
for  transportation  to  the  agent  at  Sherman  station.  The  ques- 
tion arises,  then,  whether  the  agent  of  a  railroad  company 
at  one  of  its  stations  can  bind  the  company  by  the  execution 
of  a  bill  of  lading  for  goods  not  actually  placed  in  his  posses- 
sion, and  its  delivery  to  a  person  fraudulently  pretending  in 
collusion  with  such  agent  that  he  had  shipped  such  goods,  in 
favor  of  a  party  without  notice,  with  whom,  in  furtherance 
of  the  fraud,  the  pretended  shipper  negotiates  a  draft,  with 
the  false  bill  of  lading  attached.  Bills  of  exchange  and  promis- 
sory notes  are  representatives  of  money,  circulating  in  the  com- 
mercial world  as  such,  and  it  is  essential,  to  enable  them  to 
perform  their  peculiar  functions,  that  he  who  purchases  them 
should  not  be  bound  to  look  beyond  the  instrument,  and  that 
his  right  to  enforce  them  should  not  be  defeated  by  anything 
short  of  bad  faith  on  his  part.     But  bills  of  lading  answer 

322 


FEIEDLANDEE   v.   TEX.   AND   P.   KY.   CO.  §  84 

a  different  purpose  and  perform  different  functions.  They  are 
regarded  as  so  much  cotton,  grain,  iron  or  other  articles  of 
merchandise,  in  that  they  are  symbols  of  ownership  of  the 
goods  they  cover.  And  as  no  sale  of  goods  lost  or  stolen,  though 
to  a  bona  fide  purchaser  for  value,  can  divest  the  ownership  of 
the  person  who  lost  them  or  from  whom  they  were  stolen,  so  the 
sale  of  the  symbol  or  mere  representative  of  the  goods  can  have 
no  such  effect,  although  it  sometimes  happens  that  the  true 
owner,  by  negligence,  has  so  put  it  into  the  power  of  another 
to  occupy  his  position  ostensibly,  as  to  estop  him  from  asserting 
his  right  as  against  a  purchaser,  who  has  been  misled  to  his 
hurt  by  reason  of  such  negligence.  Shaw  v.  Railroad  Co.,  101 
U.  S.  557,  563;  Pollard  v.  Vinton,  105  U.  S.  7,  8;  Gurney  v. 
Behrend,  3  El.  &  Bl.  622,  633,  634.  It  is  true  that  while  not 
negotiable  as  commercial  paper  is,  bills  of  lading  are  commonly 
used  as  security  for  loans  and  advances ;  but  it  is  only  as  evi- 
dence of  ownership,  special  or  general,  of  the  property  mentioned 
in  them,  and  of  the  right  to  receive  such  property  at  the  place 
of  delivery. 

Such  being  the  character  of  a  bill  of  lading,  can  a  recovery 
be  had  against  a  common  carrier  for  goods  never  actually  in 
its  possession  for  transportation,  because  one  of  its  agents,  hav- 
ing authority  to  sign  bills  of  lading,  by  collusion  with  another 
person  issues  the  document  in  the  absence  of  any  goods  at  all  ? 

It  has  been  frequently  held  by  this  court  that  the  master  of 
a  vessel  has  no  authority  to  sign  a  bill  of  lading  for  goods  not 
actually  put  on  board  the  vessel,  and,  if  he  does  so,  his  act  does 
not  bind  the  owner  of  the  ship  even  in  favor  of  an  innocent 
purchaser.  The  Freeman  v.  Buckingham,  18  How.  182,  191 ; 
The  Lady  F«-anklin,  8  Wall.  325 ;  Pollard  v.  Vinton,  105  U.  S. 
7.  And  this  agrees  with  the  rule  laid  down  by  the  English 
courts.  Lickbarrow  v.  Mason,  2  T.  R.  63;  Grant  v.  Norway, 
10  C.  B.  665;  Cox  V.  Bruce,  18  Q.  B.  D.  147.  "The  receipt 
of  the  goods,"  said  Mr.  Justice  Miller,  in  Pollard  v.  Vinton, 
supra,  "lies  at  the  foundation  of  the  contract  to  carry  and  de- 
liver. If  no  goods  are  actually  received,  there  can  be  no  valid 
contract  to  carry  or  to  deliver."  "And  the  doctrine  is  ap- 
plicable to  transportation  contracts  made  in  that  form  by  rail- 
way companies  and  other  carriers  by  land,  as  well  as  carriers 
by  sea, ' '  as  was  said  by  Mr.  Justice  Matthews  in  Iron  Mountain 
Railway  v.  Knight,  122  U.  S.  79,  87;  7  S.  Ct.  R.  1132,  he  adding 
also :  "If  Potter  (the  agent)  had  never  delivered  to  the  plaintiff 
in  error  any  cotton  at  all  to  make  good  the  525  bales  called  for 
by  the  bills  of  lading,  it  is  clear  that  the  plaintiff  in  error 
would  not  be  liable  for  the  deficiency.    This  is  well  established 

323 


§  84  EIGHTS  AND  DUTIES  OF  COMMON  CAEKIEE. 

by  the  cases  of  The  Schooner  Freeman  v.  Buckingham,  18  How. 
182,  and  Pollard  v.  Vinton,  105  U.  S.  7." 

It  is  a  familiar  principle  of  law  that  where  one  of  two  inno- 
cent parties  must  suffer  by  the  fraud  of  another,  the  loss  should 
fall  upon  him  who  enabled  such  third  person  to  commit  the 
fraud;  but  nothing  that  the  railroad  company  did  or  omitted 
to  do  can  be  properly  said  to  have  enabled  Lahnstein  to  impose 
upon  Friedlander  &  Co.  The  company  not  only  did  not  author- 
ize Easton  to  sign  fictitious  bills  of  lading,  but  it  did  not  as- 
sume authority  itself  to  issue  such  documents  except  upon  the 
delivery  of  the  merchandise.  Easton  was  not  the  company's 
agent  in  the  transaction,  for  there  was  nothing  upon  which 
the  agency  could  act.  Railroad  companies  are  not  dealers  in 
bills  of  exchange,  nor  in  bills  of  lading;  they  are  carriers  only, 
and  held  to  rigid  responsibility  as  such.  Easton,  disregarding 
the  object  for  which  he  was  emploj'^ed,  and  not  intending  by  his 
act  to  execute  it,  but  wholly  for  a  purpose  of  his  own  and  of 
Lahnstein,  became  particeps  criminis  with  the  latter  in  the 
commission  of  the  fraud  upon  Friedlander  &  Co.,  and  it  would 
be  going  too  far  to  hold  the  company,  under  such  circumstances, 
estopped  ^rom  denying  that  it  had  clothed  this  agent  with  ap- 
parent authority  to  do  an  act  so  utterly  outside  the  scope  of 
his  employment  and  of  its  own  business.  The  defendant  can- 
not be  held  on  contract  as  a  common  carrier,  in  the  absence  of 
goods,  shipment  and  shipper;  nor  is  the  action  maintainable  on 
the  ground  of  tort.  "The  general  rule,"  said  Willes,  J.,  in 
Barwick  v.  English  Joint  Stock  Bank,  L.  R.  2  Ex.  259,  265,  "is 
that  the  master  is  answerable  for  every  such  wrong  of  the  ser- 
vant or  agent  as  is  committed  in  the  course  of  the  service  and 
for  the  master's  benefit,  though  no  express  command  or  privity 
of  the  master  be  proved."  See  also  Limpus  v.  London  General 
Omnibus  Co.,  1  H.  &  C.  526.  The  fraud  was  in  respect  to  a 
matter  within  the  scope  of  Easton 's  employment  or  outside  of 
it.  It  was  not  within  it,  for  bills  of  lading  could  only  be  issued 
for  merchandise  delivered;  and  being  without  it,  the  company, 
which  derived  and  could  derive  no  benefit  from  the  unauthor- 
ized and  fraudulent  act,  cannot  be  made  responsible.  British 
Mutual  Banking  Co.  v.  Charnwood  Forest  Railway  Co.,  18  Q. 
B.  D.  714. 

The  law  can  punish  roguery,  but  cannot  always  protect  a 
purchaser  from  loss,  and  so  fraud  perpetrated  through  the 
device  of  a  false  bill  of  lading  may  work  injury  to  an  innocent 
party,  which  cannot  be  redressed  by  a  change  of  victim. 

Under  the  Texas  statutes  the  trip  or  voyage  commences  from 
the  time  of  the  signing  of  the  bill  of  lading  issued  upon  the 

324 


AYRES  V.   C.   AND   N.   W.   EY.   CO.  §§84,85 

delivery  of  the  goods,  and  thereunder  the  carrier  cannot  avoid 
his  liability  as  such,  even  though  the  goods  are  not  actually  on 
their  passage  at  the  time  of  loss,  but  these  provisions  do  not 
affect  the  result  here. 

We  cannot  distinguish  the  case  in  hand  from  those  heretofore 
decided  by  this  court,  and  in  consonance  with  the  conclusions 
therein  announced  this  judgment  must  be  affirmed. 


85.     AYRES  V.  CHICAGO  AND  NORTHWESTERN  RAIL- 
WAY CO., 

71  Wis.  372;  37  N.  W.  B.  432;  5  Am.  St.  R.  227.    1888. 

Action  against  defendant  as  a  common  carrier  of  live  stock 
for  damages  due  to  delay  in  furnishing  seven  cars  ordered  for 
the  shipment  of  live  stock.  Two  cars  were  furnished  at  the  re- 
quired time,  but  the  other  five  were  not,  nor  was  plaintiff  notified 
that  the  cars  could  not  be  furnished  as  ordered,  in  consequence 
of  which  he  brought  sufficient  live  stock  to  the  stations  to  load 
all  the  cars.  Verdict  of  $825.97  for  plaintiff  because  of  cost 
of  care  and  feeding,  and  depreciation  in  value  and  shrinkage 
due  to  the  delay. 

Cassoday,  J.  There  is  no  finding  of  any  agreement  on  the 
part  of  the  defendant  to  have  the  cars  in  readiness  at  the  sta- 
tions on  Tuesday  morning,  October  17,  1882.  There  is  no  testi- 
mony to  support  such  a  finding.  One  of  the  plaintiffs  testified, 
in  effect,  that  he  told  the  agent  that  he  would  want  the  cars 
on  the  morning  of  the  day  named;  that  the  agent  took  down 
the  order,  put  it  on  his  book,  and  said:  "All  right,"  he  would 
try  and  get  them,  but  that  they  were  short  because  they  were 
then  using  more  cars  for  other  purposes;  that  nothing  more 
was  said.  It  appears  in  the  case  that  the  cars  were  in  fact 
furnished.  It  also  appears  that,  as  the  shipments  were  made, 
special  written  contracts  therefor  were  entered  into  between 
the  parties,  whereby  it  was,  in  effect,  agreed  and  understood 
that  the  plaintiffs  should  load,  feed,  water,  and  take  care  of 
such  stock  at  their  owoi  expense  and  risk,  and  that  they  would 
assume  all  risk  of  injury  or  damage  that  the  animals  might  do 
to  themselves  or  each  other,  or  which  might  arise  by  delay  of 
trains ;  that  the  defendants  should  not  be  liable  for  loss  by  jump- 
ing from  the  cars  or  delay  of  trains  not  caused  by  the  defendant's 
negligence.  The  court,  in  effect,  charged  the  jury  that  there 
was  no  evidence  of  any  negligence  on  the  part  of  the  defend- 

325 


§  85  EIGHTS  AND  DUTIES  OF  COMMON  CAEEIEE. 

ant  causing  delay  in  any  train  after  shipment,  and  hence  that 
the  delay  of  the  two  cars  admitted  to  have  been  furnished  in 
time  was  not  before  them  for  consideration.  This  relieves  the 
case  from  all  liability  on  contract.  It  also  narrows  the  case 
to  the  defendant's  liability  for  the  delay  of  two  days  in  fur- 
nishing the  five  cars  at  the  stations  named,  as  ordered  by  the 
plaintiffs,  and  in  the  absence  of  any  contract  to  do  so. 

In  Richardson  v.  Chicago  etc.  R'y  Co.,  61  Wis.  601,  18  Am. 
&  Eng.  R.  R.  Cas.  530,  21  N.  W.  R.  49,  it  was,  in  effect,  held 
competent  for  a  railroad  company  engaged  in  the  business  of 
transporting  live-stock  to  exempt  itself  by  express  contract 
"from  damage  caused  wholly  or  perhaps  in  part  by  the  in- 
stincts, habits,  propensities,  wants,  necessities,  vices,  or  locomo- 
tion of  such  animals. ' '  And  it  was  then  said :  ' '  Since  the  action 
is  not  based  upon  contract,  the  plaintiff  must  recover,  if  at  all, 
by  reason  of  the  defendant's  liability  as  a  common  carrier  upon 
mere  notice  to  furnish  cars,  and  a  readiness  to  ship  at  the  time 
notified.  Did  such  notice  and  readiness  to  ship  create  such 
liability?  We  have  seen  that  a  carrier  of  live-stock  may,  to 
at  least  a  certain  extent,  limit  its  liability.  Whether  the  de- 
fendant was  accustomed  to  so  limit  its  liability,  or  to  carry  all 
live-stock  tendered  upon  notice,  without  restriction,  does  not 
appear  from  the  record.  If  it  was  accustomed  to  so  limit,  and 
the  limitation  was  legal,  it  should  at  least  have  been  so  al- 
leged, together  with  an  offer  to  comply  with  the  customary 
restriction.  If  it  was  accustomed  to  carry  all  live-stock  of- 
fered upon  notice  and  tender,  and  without  restriction,  then  it 
would  be  difficult  to  see  upon  what  ground  it  could  discrimi- 
inate  against  the  plaintiff  by  refusing  to  do  for  him  what  it 
was  constantly  in  the  habit  of  doing  for  others. ' ' 

In  that  case,  there  was  a  failure  to  allege  any  such  custom  or 
holding  out  on  the  part  of  the  defendant,  or  that  reasonable 
notice  had  been  given  to  the  defendant  to  furnish  suitable  cars 
to  the  person  applying  therefor,  or  that  the  same  was  within 
its  power  to  do  so;  and  hence  the  demurrer  was  sustained. 
The  allegations  thus  wanting  in  that  case  are  present  in  this 
complaint.  It  is,  moreover,  in  effect  admitted  that  the  defend- 
ant was  at  times,  when  able  to  do  so,  engaged  in  the  transpor- 
tation of  live-stock  over  its  roads,  one  line  of  which  runs  through 
the  stations  in  question ;  that  it  was  accustomed  to  furnish  suit- 
able cars  therefor,  upon  reasonable  notice,  when  within  its  power 
to  do  SO;  and  to  receive,  transport,  and  deliver  such  live-stock 
with  reasonable  dispatch,  but  only  upon  special  contracts  at  the 
time  entered  into  between  the  shipper  and  the  defendant,  and 
upon  such  terms  and  conditions  as  should  be  agreed  upon  in 

326 


AYEES   V.   C.   AND    N.   W.   EY.   CO.  §  85 

writing.  It  is,  moreover,  manifest  that  the  defendant  actually 
undertook  to  furnish  the  cars  at  the  time  designated  by  the 
plaintiffs ;  that  it  succeeded  in  furnishing  two  of  them  on  time : 
that  there  was  a  delay  of  two  days  in  furnishing  the  other  five ; 
and  that  the  plaintiffs  were  willing  to  and  did  submit  to  the 
terms  and  conditions  of  carriage  imposed  by  the  defendant  by 
signing  the  special  written  contracts  mentioned.  It  must  be 
assumed,  also,  that  such  special  written  contracts  were  substan- 
tially the  same  as  all  contracts  made  by  the  defendant  at  that 
season  of  the  year  for  the  shipment  of  similar  live-stock  under 
similar  circumstances.  Otherwise  the  defendant  would  be  justly 
chargeable  with  unlawful  discrimination;  the  right  to  do  which 
the  learned  counsel  for  the  defendant  frankly  disclaimed  upon 
the  argument. 

We  are  therefore  forced  to  the  conclusion  that,  at  the  time 
the  plaintiffs  applied  for  the  cars,  the  defendant  was  engaged 
in  the  business  of  transporting  live-stock  over  its  roads,  in- 
cluding the  line  in  question,  and  that  it  was  accustomed  to 
furnish  suitable  cars  therefor,  upon  reasonable  notice,  when- 
ever it  was  within  its  power  to  do  so;  and  that  it  held  itself 
out  to  the  public  generally  as  such  carrier  for  hire,  upon  such 
terms  and  conditions  as  were  prescribed  in  the  written  con- 
tracts mentioned.  These  things,  in  our  judgment,  made  the 
defendant  a  common  carrier  of  live-stock,  with  such  restric- 
tions and  limitations  of  its  common-law  duties  and  liabilities 
as  arose  from  the  instincts,  habits,  propensities,  wants,  neces- 
sities, vices,  or  locomotion  of  such  animals,  under  the  contracts 
of  carriage.  This  proposition  is  fairly  deducible  from  w^hat 
was  said  in  Richardson  v.  Chicago  etc.  R'y  Co.,  supra,  and  is 
supported  by  the  logic  of  numerous  cases :  North  Pennsylvania 
R.  R.  Co.  V.  Commercial  Bank,  123  U.  S.  727,  8  S.  Ct.  R.  266 ; 
Moulton  V.  St.  Paul  etc.  R.  R.  Co.,  31  Minn.  85,  16  N.  W.  R.  497, 

12  Am.  &  Eng.  R.  R.  Cas.  13 ;  Lindsley  v.  Chicago  etc.  R.  R.  Co., 
36  Minn.  539,  32  N.  W.  R.  7 ;  Evans  v.  Fitchburg  R.  R.  Co.,  Ill 
Mass.  142,  15  Am.  R.  19;  Kimball  v.  Rutland,  etc.  R.  R.  Co., 
26  Vt.  247,  62  Am.  Dec.  567 ;  Rixford  v.  Smith,  52  N.  H.  355, 

13  Am.  R.  42;  Clarke  v.  Rochester  etc.  R.  R.  Co.,  14  N.  Y.  570, 
67  Am.  Dec.  205 ;  South  &  N.  A.  R.  R.  Co.  v.  Henlein,  52  Ala. 
606,  23  Am.  R.  578 ;  Baker  v.  L.  &  N.  R.  R.  Co.,  10  Lea,  304, 
16  Am.  &  Eng.  R.  R.  Cas.  149;  Philadelphia  etc.  R.  R.  Co.  v. 
Lehman,  56  Md.  209,  40  Am.  R.  415 ;  McFadden  v.  M.  P.  R.  R. 
Co.,  92  Mo.  343,  4  S.  W.  R.  698,  3  Am.  &  Eng.  Cyclop.  Law, 
1-10,  and  the  cases  there  cited.  This  is  in  harmony  with  the 
statement  of  Parke,  B.,  in  the  case  cited  by  counsel  for  the  de- 
fendant, that  "at  common  law  a  carrier  is  not  bound  to  carry 

327 


§  85  EIGHTS  AND  DUTIES  OF  COMMON  OAEEIEE. 

for  every  person  tendering  goods  of  any  description,  but  his 
obligation  is  to  carry  according  to  his  public  profession ' ' :  John- 
son V.  Midland  R.  K  Co.,  4  Ex.  372.  Being  a  common  carrier  of 
live-stock  for  hire,  with  the  restrictions  and  limitations  named, 
and  holding  itself  out  to  the  public  as  such,  the  defendant  is 
bound  to  furnish  suitable  cars  for  such  stock,  upon  reasonable 
notice,  whenever  it  can  do  so  with  reasonable  diligence  without 
jeopardizing  its  other  business  as  such  common  carrier:  Texas 
etc.  R.  R.  Co.  V.  Nicholson,  61  Tex.  491 ;  Chicago  etc.  R.  R.  Co. 
V.  Erickson,  91  111.  613,  33  Am.  R.  70;  Ballentine  v.  N.  M.  R. 
R.  Co.,  40  Mo.  491,  93  Am.  D.  315 ;  Guinn  v.  W.,  St.  L.  &  P. 
R.  R.  Co.,  20  Mo.  App.  453. 

Whether  the  defendant  could  with  such  diligence  so  furnish 
upon  the  notice  given,  was  necessarily  a  question  of  fact  to  be 
determined.  The  plaintiffs,  as  such  shippers,  had  the  right  to 
command  the  defendant  to  furnish  such  cars.  But  they  had 
no  right  to  insist  upon  or  expect  compliance,  except  upon  giving 
reasonable  notice  of  the  time  when  they  would  be  required.  To 
be  reasonable,  such  notice  must  have  been  sufficient  to  enable 
the  defendant,  with  reasonable  diligence  under  the  circum- 
stances then  existing,  to  furnish  the  cars  without  interfering 
with  previous  orders  from  other  shippers  at  the  same  station, 
or  jeopardizing  its  business  on  other  portions  of  its  road. 

It  must  be  remembered  that  the  defendant  has  many  lines 
of  railroad  scattered  through  several  different  states.  Along 
each  and  all  of  these  different  lines  it  has  stations  of  more  or 
less  importance.  The  company  owes  the  same  duty  to  ship- 
pers at  any  one  station  as  it  does  to  the  shippers  at  any  other 
station  of  the  same  business  importance.  The  rights  of  all 
shippers  applying  for  such  cars  under  the  same  circumstances 
are  necessarily  equal.  No  one  station,  much  less  any  one  ship- 
per, has  the  right  to  command  the  entire  resources  of  the  com- 
pany to  the  exclusion  or  prejudice  of  other  stations  and  other 
shippers.  Most  of  such  suitable  cars  must  necessarily  be  scat- 
tered along  and  upon  such  different  lines  of  railroad,  loaded 
or  unloaded.  Many  will  necessarily  be  at  the  larger  centers 
of  trade.  The  conditions  of  the  market  are  not  always  the  same, 
but  are  liable  to  fluctuations,  and  may  be  such  as  to  create  a 
great  demand  for  such  cars  upon  one  or  more  of  such  lines, 
and  very  little  upon  others.  Such  cars  should  be  distributed 
along  the  different  lines  of  road,  and  the  several  stations  on  each, 
as  near  as  may  be  in  proportion  to  the  ordinary  business  re- 
quirements at  the  time,  in  order  that  shipments  may  be  made 
with  reasonable  celerity.  The  requirement  of  such  fair  and 
general  distribution  and  uniform  vigilance  is  not  only  mutually 

328 


AYRES  V.  C.   AND   N.  W.  EY.   CO.  §  85 

beneficial  to  producers,  shippers,  carriers,  and  purchasers,  but 
of  business  and  trade  generally.  It  is  the  extent  of  such  busi- 
ness ordinarily  done  on  a  particular  line,  or  at  a  particular  sta- 
tion, which  properly  measures  the  carrier's  obligation  to  fur- 
nish such  transportation.  But  it  is  not  the  duty  of  such  carrier 
to  discriminate  in  favor  of  the  business  of  one  station  to  the 
prejudice  and  injury  of  the  business  of  another  station  of  the 
same  importance.  These  views  are  in  harmony  with  the  adjudi- 
cations last  cited. 

The  important  question  is,  whether  the  burden  was  upon 
the  plaintiffs  to  prove  that  the  defendant  might,  with  such 
reasonable  diligence,  and  without  thus  jeopardizing  its  other 
business,  have  furnished  such  cars  at  the  time  ordered  and 
'upon  the  notice  given;  or  whether  such  burden  was  upon  the 
defendant  to  prove  its  inability  to  do  so.  We  find  no  direct 
adjudication  upon  the  question.  Ordinarily,  a  plaintiff  alleg- 
ing a  fact  has  the  burden  of  proving  it.  This  rule  has  been 
applied  by  this  court,  even  where  the  complaint  alleges  a  nega- 
tive, if  it  is  susceptible  of  proof  by  the  plaintiff:  Hepler  v. 
State,  58  Wis.  46,  16  N.  W.  E.  42.  But  it  has  been  held  other- 
wise where  the  only  proof  is  peculiarly  within  the  control  of 
the  defendant :  Mecldem  v.  Blake,  16  Id.  102,  82  Am.  D.  707 ; 
Beckman  v.  Henn,  17  Id.  412 ;  Noonan  v.  Ilsley,  21  Id.  144,  84 
Am.  D.  742 ;  Great  Western  R.  R.  Co.  v.  Bacon,  30  111.  352,  88 
Am.  D.  199;  Brown  v.  Brown,  30  La.  Ann.  511.  Here  it  may 
have  been  possible  for  the  plaintiffs  to  have  proved  that  there 
were,  at  the  times  and  stations  named,  or  in  the  vicinity,  empty 
cars,  or  cars  which  had  reached  their  destination,  and  might 
have  been  emptied  with  reasonable  diligence,  but  they  could 
not  know  or  prove,  except  by  agents  of  the  defendant,  that  any 
of  such  cars  were  not  subject  to  prior  orders  or  superior  ob- 
ligations. The  ability  of  the  defendant  to  so  furnish  with  or- 
dinary diligence  upon  the  notice  given,  upon  the  principles 
stated,  was,  as  we  think,  peculiarly  within  the  knowledge  of  the 
defendant  and  its  agents,  and  hence  the  burden  was  upon  it  to 
prove  its  inability  to  do  so.  Where  a  shipper  applies  to  the 
proper  agency  of  a  railroad  company  engaged  in  the  business  of 
such  common  carrier  of  live  stock  for  such  cars  to  be  furnished 
at  a  time  and  station  named,  it  becomes  the  duty  of  the  com- 
pany to  inform  the  shipper  within  a  reasonable  time,  if  prac- 
ticable, whether  it  is  unable  to  so  furnish,  and  if  it  fails  to  give 
such  notice,  and  has  induced  the  shipper  to  believe  that  the 
ears  will  be  in  readiness  at  the  time  and  place  named,  and  the 
shipper,  relying  upon  such  conduct  of  the  carrier,  is  present 
with  his  live-stock  at  the  time   and  place  named,   and  finds 

329 


§§  85,  86  EIGHTS  AND  DUTIES  OF  COMMON  CAREIER. 

no  cars,  there  would  seem  to  be  no  good  reason  why  the  company 
should  not  respond  in  damages.  Of  course,  these  observations  do 
not  involve  the  question  whether  a  railroad  company  may  not 
refrain  from  engaging  in  such  business  as  a  common  carrier; 
nor  whether,  having  so  engaged,  it  may  not*  discontinue  the 
same. 

The  court  very  properly  charged  the  jury,  in  effect,  that  if 
all  the  cars  had  been  furnished  on  time,  as  the  two  were,  it  was 
reasonable  to  presume,  in  the  absence  of  any  proof  of  actionable 
negligence  on  the  part  of  the  defendant,  that  they  would  have 
reached  Chicago  at  the  same  time  the  two  did,  to  wit,  Thursday, 
October  19,  1882,  A.  M.,  whereas  they  did  not  arrive  until  Fri- 
day evening.  This  was  in  time,  however,  for  the  market  in 
Chicago  on  Saturday,  October  21,  1882.  This  necessarily  lim- 
ited the  recovery  to  the  expense  of  keeping,  the  shrinkage,  and 
depreciation  in  value  from  Thursday  until  Saturday:  Chicago 
etc.  R.  R.  Co.  V.  Erickson,  91  111.  613 ;  33  Am.  R.  70.  The  trial 
court,  however,  refused  to  so  limit  the  recovery,  but  left  the  jury 
at  liberty  to  include  such  damages  down  to  Monday,  October  23, 
1882.  For  this  manifest  error,  and  because  there  seems  to  have 
been  a  mistrial  in  some  other  respects,  the  judgment  of  the  cir- 
cuit court  is  reversed,  and  the  cause  is  remanded  for  a  new 
trial. 

By  the  Court.    Ordered  accordingly. 


>  86.    EXPRESS  CASES, 
117  U.  S.  1,  6  S.  Ct.  R.  542.    1885. 

These  cases  were  begun  by  the  Southern  Express  Co.  against 
the  St.  Louis,  Iron  Mountain  &  Southern  Railroad  Co.  and  the 
Memphis  &  Little  Rock  Railroad  Co.,  and  by  the  Adams  Express 
Co.  against  the  Missouri,  Kansas  &  Texas  Railway  Co.  to  com- 
pel them  to  give  them  the  express  facilities  which  they  had  pre- 
viously enjoyed  by  contract,  and  of  which  they  had  been  d^ispos- 
sessed  by  notice  given  in  accordance  with  the  terms  of  the  con- 
tracts.   Judgment  below  in  favor  of  the  Express  companies. 

Waite,  C.  J.  .  .  .  The  evidence  shows  that  the  express 
business  was  first  organized  in  the  United  States  about  the  year 

1839.  The  case  of  New  Jersey  Steam  Navigation  Company  v. 
Merchants'  Baric,  6  How.  344,  grew  out  of  a  loss  by  the  burning 
of  the  steamboat  Lexington  on  Long  Island  Sound  in  January, 

1840,  of  $18,000  in  gold  and  silver  coin,  while  in  charge  of  Wm. 
F.  Harnden,  an  express  carrier,  for  transportation  from  New 

330 


EXPEESS   Cx\.SES.  §  86 

York  to  Boston.  In  the  report  of  this  case  is  found  a  copy  of  one 
of  the  earliest  advertisements  of  the  express  business  as  pub- 
lished in  two  of  the  Boston  newspapers  in  July,  1839.  It  is  as 
follows : 

"Boston  and  New  York  Express  Package  Car. — Notice  to 
Merchants,  Brokers,  Booksellers,  and  all  Business  Men. 

"Wm.  F.  Harnden,  having  made  arrangements  with  the  New 
York  and  Boston  Transportation  and  Stonington  and  Providence 
Railroad  Companies,  will  run  a  car  through  from  Boston  to 
New  York  and  vice  versa,  via  Stonington,  with  the  mail  train 
daily,  for  the  purpose  of  transporting  specie,  small  packages  of 
goods,  and  bundles  of  all  kinds.  Packages  sent  by  this  line  will 
be  delivered  on  the  following  morning,  at  any  part  of  the  city, 
free  of  charge.  A  responsible  agent  will  accompany  the  car,  who 
will  attend  to  purchasing  goods,  collecting  drafts,  notes  and  bills, 
and  will  transact  any  other  business  that  may  be  intrusted  to 
him. 

"Packages  for  Philadelphia,  Baltimore,  Washington,  New 
Haven,  Hartford,  Albany  and  Troy  will  be  forwarded  immedi- 
ately on  arrival  in  New  York. 

(For  the  remainder  of  this  agreement  see  ante  §  79.) 

Such  was  the  beginning  of  the  express  business  which  now  has 
grown  to  an  enormous  size,  and  is  carried  on  all  over  the  United 
States  and  in  Canada,  and  has  been  extended  to  Europe  and  the 
West  Indies.  It  has  become  a  public  necessity,  and  ranks  in 
importance  with  the  mails  and  with  the  telegraph.  It  employs 
for  the  purposes  of  transportation  all  the  important  railroads 
in  the  United  States,  and  a  new  road  is  rarely  opened  to  the  pub- 
lie  without  being  equipped  in  some  form  with  express  facilities. 
It  is  used  in  almost  every  conceivable  way,  and  for  almost  every 
conceivable  purpose,  by  the  people  and  by  the  government.  All 
have  become  accustomed  to  it,  and  it  cannot  be  taken  away  with- 
out breaking  up  many  of  the  long  settled  habits  of  business,  and 
interfering  materially  with  the  conveniences  of  social  life. 

In  this  connection  it  is  to  be  kept  in  mind  that  neither  of  the 
railroad  companies  involved  in  these  suits  is  attempting  to  de- 
prive the  general  public  of  the  advantages  of  an  express  busi- 
ness over  its  road.  The  controversy,  in  each  case  is  not  with  the 
public,  but  with  a  single  express  company.  And  the  real  ques- 
tion is  not  whether  the  railroad  companies  are  authorized  by  law 
to  do  an  express  business  themselves;  nor  whether  they  must 
carry  express  matter  for  the  public  on  their  passenger  trains,  in 
the  immediate  charge  of  some  person  specially  appointed  for  that 
purpose;  nor  whether  they  shall  carry  express  freights  for  ex- 
press companies  as  they  carry  like  freights  for  the  general  pub- 

331 


§  86  EIGHTS  AND  DUTIES  OF  COMMON  CARRIER. 

lie ;  but  whether  it  is  their  duty  to  furnish  the  Adams  Company 
or  the  Southern  Company  facilities  for  doing  an  express  business 
upon  their  roads  the  same  in  all  respects  as  those  they  provide 
for  themselves  or  afford  to  any  other  express  company. 

When  the  business  began  railroads  were  in  their  infancy.  They 
were  few  in  number,  and  for  comparatively  short  distances. 
There  has  never  been  a  time,  however,  since  the  express  business 
was  started  that  it  has  not  been  encouraged  by  the  railroad  com- 
panies, and  it  is  no  doubt  true,  as  alleged  in  each  of  the  bills 
filed  in  these  cases,  that  "no  railroad  company  in  the  United 
States  .  .  .  has  ever  refused  to  transport  express  matter 
for  the  public,  upon  the  application  of  some  express  company,  of 
some  form  of  legal  constitution.  Every  railroad  company  .  .  . 
has  recognized  the  right  of  the  public  to  demand  transportation 
by  the  railway  facilities  which  the  public  has  permitted  to  be 
created,  of  that  class  of  matter  which  is  known  as  express  mat- 
ter." Express  companies  have  undoubtedly  invested  their  capi- 
tal and  built  up  their  business  in  the  hope  and  expectation  of  se- 
curing and  keeping  for  themselves  such  railway  facilities  as 
they  needed,  and  railroad  companies  have  likewise  relied  upon 
the  express  business  as  one  of  their  important  sources  of  income. 

But  it  is  neither  averred  in  the  bills,  nor  sho^vn  by  the  testi- 
mony, that  any  railroad  company  in  the  United  States  has  ever 
held  itself  out  as  a  common  carrier  of  express  companies,  that 
is  to  say,  as  a  common  carrier  of  common  carriers.  On  the  con- 
trary it  has  been  shown,  and  in  fact  it  was  conceded  upon  the 
argument,  that,  down  to  the  time  of  bringing  these  suits,  ^o 
railroad  company  had  taken  an  express  company  on  its  road  for 
business  except  under  some  special  contract,  verbal  or  written, 
and  generally  written,  in  which  the  rights  and  the  duties  of  the 
respective  parties  were  carefuly  fixed  and  defined.  These  con- 
tracts, as  is  seen  by  those  in  these  records,  vary  necessarily  in 
their  details,  according  to  the  varying  circumstances  of  each  par- 
ticular case,  and  according  to  the  judgment  and  discretion  of  the 
parties  immediately  concerned.  It  also  appears  that,  with  very 
few  exceptions,  only  one  express  company  has  been  allowed  by 
a  railroad  company  to  do  business  on  its  road  at  the  same  time. 
In  some  of  the  States*  statutes  have  been  passed  which,  either 
in  express  terms  or  by  judicial  interpretation,  require  railroad 
companies  to  furnish  equal  facilities  to  all  express  companies, 
Gen.  Laws  N.  H.,  1878,  ch.  163,  §  2 ;  Rev.  Stat.  Maine,  1883,  494, 
eh.  51,  §  134;  but  these  are  of  comparative  recent  origin,  and 
thus  far  seem  not  to  l^ave  been  generally  adopted. 

(Omitting  the  constitutional  and  statutory  provisions  in  cer- 
tain states.) 

332 


EXPRESS  CASES.  §  86 

The  reason  is  obvious  why  special  contracts  in  reference  to 
this  business  are  necessary.     The  transportation  required  is  of 
a  kind  which  must,  if  possible,  be  had  for  the  most  part  on  pas- 
senger trains.     It  requires  not  only  speed,  but  reasonable  cer- 
tainty as  to  the  quantity  that  will  be  carried  at  any  one  time.  As 
the  things  carried  are  to  be  kept  in  the  personal  custody  of  the 
messenger  or  other  employee  of  the  express  company,  it  is  im- 
portant that  a  certain  amount  of  car  space  should  be  specially 
set  apart  for  the  business,  and  that  this  should,  as  far  as  prac- 
ticable, be  put  in  the  exclusive  possession  of  the  express  man  in 
charge.    As  the  business  to  be  done  is  ''express,"  it  implies  ac- 
cess to  the  train  for  loading  at  the  latest,  and  for  unloading  at 
the^earliest,  convenient  moment.    All  this  is  entirely  inconsistent 
with  the  idea  of  an  express  business  on  passenger  trains  free  to 
all  express  carriers.    Eailroad  companies  are  by  law  carriers  of 
both  persons  and  property.    Passenger  trains  have  from  the  be- 
ginning been  provided  for  the  transportation  primarily  of  pas- 
sengers and  their  baggage.     This  must  be  done  with  reasonable 
promptness  and  with  reasonable  comfort  to  the  passenger.     The 
express  business  on  passenger  trains  is  in  a  degree  subordinate 
to  the  passenger  business,  and  it  is  consequently  the  duty  of  a 
railroad  company  in  arranging  for  the  express  to  see  that  there 
is  as  little  interference  as  possible  with  the  wants  of  passengers. 
This  implies  a  special  understanding  and  agreement  as  to  the 
amount  of  car  space  that  will  be  afforded,  and  the  conditions  on 
which  it  is  to  be  occupied,  the  particular  trains  that  can  be  used, 
the  places  at  which  they  shall  stop,  the  price  to  be  paid,  and  all 
the  varying  details  of  a  business  which  is  to  be  adjusted  between 
two  public  servants,  so  that  each  can  perform  in  the  best  man- 
ner its  own  pai'ticular  duties.    All  this  must  necessarily  be  a  mat- 
ter of  bargain,  and  it  by  no  means  follows  that,  because  a  rail- 
road company  can  serve  one  express  company  in  one  way,  it  can 
as  well  serve  another  company  in  the  same  way,  and  still  perform 
its  other  obligations  to  the  public  in  a  satisfactory  manner.    The 
car  space  that  can  be  given  to  the  express  business  on  a  passen- 
ger train  is,  to  a  certain  extent,  limited,  and,  as  has  been  seen, 
that  which  is  allotted  to  a  particular  carrier  must  be,  in  a  meas- 
ure, under  his  exclusive  control.     No  express  company  can  do 
a  successful  business  unless  it  is  at  all  times  reasonalDly  sure  of 
the  means  it  requires  for  transportation.     On  important  lines 
one  company  will  at  times  fill  all  the  space  the  railroad  company 
can  well  allow  for  the  business.    If  this  space  had  to  be  divided 
among  several  companies,  there  might  be  occasions  when  the 
public  would  be  put  to  inconvenience  by  delays  which  could  oth- 
erwise be  avoided.     So  long  as  the  public  are  served  to  their 

333 


§  86  EIGHTS  AND  DUTIES  OF  COMMON  CAEEIER. 

reasonable  satisfaction,  it  is  a  matter  of  no  importance  who  serves 
them.  The  railroad  company  performs  its  whole  duty  to  the 
public  at  large  and  to  each  individual  when  it  affords  the  public 
all  reasonable  express  accommodations.  If  this  is  done  the  rail- 
road company  owes  no  duty  to  the  public  as  to  the  particular 
agencies  it  shall  select  for  that  purpose.  The  public  require  the 
carriage,  but  the  company  may  choose  its  own  appropriate  means 
of  carriage,  always  provided  they  are  such  as  to  insure  reasonable 
promptness  and  security. 

The  inconvenience  that  would  come  from  allowing  more  than 
one  express  company  on  a  railroad  at  the  same  time  was  ap- 
parently so  well  understood  both  by  the  express  companies  and 
the  railroad  companies  that  the  three  principal  express  compa- 
nies, the  Adams,  the  American  and  the  United  States,  almost 
immediately  on  their  organization,  now  more  than  thirty  years 
ago,  by  agreement  divided  the  territory  in  the  United  States  trav- 
ersed by  railroads  among  themselves,  and  since  that  time  each 
has  confined  its  own  operations  to  the  particular  roads  which, 
under  this  division,  have  been  set  apart  for  its  special  use.  No 
one  of  these  companies  has  ever  interfered  with  the  other,  and 
each  has  worked  its  allotted  territory,  always  extending  its  lines 
in  the  agreed  directions  as  circumstances  would  permit.  At  the 
beginning  of  the  late  Civil  War  the  Adams  Company  gave  up 
its  territory  in  the  Southern  States  to  the  Southern  Company, 
and  since  then  the  Adams  and  the  Southern  have  occupied,  under 
arrangements  between  themselves,  that  part  of  the  ground  orig- 
inally assigned  to  the  Adams  alone.  In  this  way  these  three  or 
four  important  and  influential  companies  were  able  substantially 
to  control,  from  1854  until  about  the  time  of  the  bringing  of 
these  suits,  all  the  railway  express  business  in  the  United  States, 
except  upon  the  Pacific  roads  and  in  certain  comparatively  lim- 
ited localities.  In  fact,  as  is  stated  in  the  argument  for  the  ex- 
press companies,  the  Adams  was  occupying  when  these  suits 
were  brought,  one  hundred  and  fifty-five  railroads,  with  a  mile- 
age of  21,216  miles;  the  American  two  hundred  roads,  with  a 
mileage  of  28,000  miles,  and  the  Southern  ninety-five  roads,  with 
a  mileage  of  10,000  miles.  Through  their  business  arrangements 
with  each  other,  and  with  other  connecting  lines,  they  have  been 
able  for  a 'long  time  to  receive  and  contract  for  the  delivery  of 
any  package  committed  to  their  charge  at  almost  any  place  of 
importance  in  the  United  States  and  in  Canada,  and  even  at  some 
places  in  Europe  and  the  West  Indies.  They  have  invested  mil- 
lions of  dollars  in  their  business,  and  have  secured  public  con- 
fidence to  such  a  degree  that  they  are  trusted  unhesitatingly  by 
all  those  who  need  their  services.    The  good  will  of  their  business 

334 


EXPEESS  CASES.  §  86 

is  of  great  value  if  they  can  keep  their  present  facilities  fur 
transportation.  The  longer  their  lines  and  the  more  favorable 
their  connections,  the  greater  will  be  their  own  profits,  and  the 
better  their  means  of  serving  the  public.  In  making  their  in- 
vestments and  in  extending  their  business,  they  have  undoubtedly 
relied  on  securing  and  keeping  favorable  railroad  transporta- 
tion, and  in  this  they  were  encouraged  by  the  apparent  willing- 
ness of  railroad  companies  to  accommodate  them;  but  the  fact 
still  remains  that  they  have  never  been  allowed  to  do  business 
on  any  road  except  under  a  special  contract,  and  that  as  a  rule 
only  one  express  company  has  been  admitted  on  a  road  at  the 
same  time. 

The  territory  traversed  by  the  railroads  involved  in  the  present 
suits  is  part  of  that  allotted  in  the  division  between  the  express 
companies  to  the  Adams  and  Southern  companies,  and  in  due 
time  after  the  roads  were  built  these  companies  contracted  with 
the  railroad  companies  for  the  privileges  of  an  express  business. 
The  contracts  were  all  in  writing,  in  which  the  rights  of  the 
respective  parties  were  clearly  defined,  and  there  is  now  no 
dispute  about  what  they  were.  Each  contract  contained  a  pro- 
vision for  its  termination  by  either  party  on  notice.  That  notice 
has  been  given  in  all  the  cases  by  the  railroad  companies,  and 
the  express  companies  now  sue  for  relief.  Clearly  this  cannot 
be  afforded  by  keeping  the  contracts  in  force,  for  both  parties 
have  agreed  that  they  may  be  terminated  at  any  time  by  either 
party  on  notice;  nor  by  making  new  contracts,  because  that  is 
not  within  the  scope  of  judicial  power. 

The  exact  question,  then,  is  whether  these  express  companies 
can  now  demand  as  a  right  what  they  have  heretofore  had  only 
as  by  permission.  That  depends,  as  is  conceded,  on  whether  all 
railroad  companies  are  now  by  law  charged  with  the  duty  of 
carrying  all  express  companies  in  the  way  that  express  carriers 
when  taken  are  usually  carried,  just  as  they  are  with  the  duty 
of  carrying  all  passengers  and  freights  when  offered  in  the 
way  that  passengers  and  freight  are  carried.  The  contracts 
which  these  companies  once  had  are  now  out  of  the  way,  and 
the  companies  at  this  time  possess  no  other  rights  than  such  as 
belong  to  any  other  company  or  person  wishing  to  do  an  express 
business  upon  these  roads.  If  they  are  entitled  to  the  relief  they, 
iask  it  is  because  it  is  the  duty  of  the  railroad  companies  to  furJ 
jnish  express  facilities  to  all  alike  who  demand  them.  ' 

The  constitutions  and  the  laws  of  the  States  in  which  the  roads 
are  situated  place  the  companies  that  own  and  operate  them  on 
the  footing  of  common  carriers,  but  there  is  nothing  which  in 
positive  terms  requires  a  railroad  company  to  carry  all  express 

335 


§  86  EIGHTS  AND  DUTIES  OF  COMMON  CAEEIEE. 

companies  in  the  way  that  under  some  circumstances  they  may 
be  able  without  inconvenience  to  carry  one  company.  In  Kansas, 
the  Missouri,  Kansas  and  Texas  Company  must  furnish  sufficient 
accommodations  for  the  transportation  of  all  such  express  freight 
as  may  be  offered,  and  in  each  of  the  States  of  Missouri,  Arkan- 
sas and  Kansas  railroad  companies  are  probably  prohibited  from 
making  unreasonable  discriminations  in  their  business  as  car- 
riers, but  this  is  all. 

Such  being  the  case,  the  right  of  the  express  companies  to  a 
decree  depends  upon  their  showing  the  existence  of  a  usage,  hay- 
ing the  force  of  law  in  the  express  business,  which  requires  rail- 
road companies  to  carry  all  express  companies  on  their  passen- 
ger trains  as  express  carriers  are  usually  carried.  It  is  not 
enough  to  establish  a  usage  to  carry  some  express  company,  or 
to  furnish  the  public  in  some  way  with  the  advantages  of  an 
express  business  over  the  road.  The  question  is  not  whether  these 
railroad  companies  must  furnish  the  general  public  with  reason- 
able express  facilities,  but  whether  they  must  carry  these  particu- 
lar express  carriers  for  the  purpose  of  enabling  them  to  do  an 
express  business  over  the  lines. 

In  all  these  voluminous  records  there  is  not  a  syllable  of  evi- 
dence to  show  a  usage  for  the  carriage  of  express  companies  on 
the  passenger  trains  of  railroads  unless  specially  contracted  for. 
While  it  has  uniformly  been  the  habit  of  railroad  companies  to 
arrange,  at  the  earliest  practicable  moment,  to  take  one  express 
company  on  some  or  all  of  their  passenger  trains,  or  to  provide 
some  other  way  of  doing  an  express  business  on  their  lines,  it 
has  never  been  the  practice  to  grant  such  a  privilege  to  more 
than  one  company  at  the  same  time,  unless  a  statute  or  some 
special  circumstances  made  it  necessary  or  desirable.  The  ex- 
press companies  that  bring  these  suits  are  certainly  in  no  situa- 
tion to  claim  a  usage  in  their  favor  on  these  particular  roads, 
because  their  entry  was  originally  under  special  contracts,  and 
no  other  companies  have  ever  been  admitted  except  by  agree- 
ment. By  the  terms  of  their  contracts  they  agreed  that  all 
their  contract  rights  on  the  roads  should  be  terminated  at  the 
will  of  the  railroad  company.  They  were  willing  to  begin  and  to 
expand  their  business  upon  this  understanding,  and  with  this 
uncertainty  as  to  the  duration  of  their  privileges.  The  stoppage 
of  their  facilities  was  one  of  the  risks  they  assumed  when  they 
accepted  their  contracts,  and  made  their  investments  under 
them.  If  the  general  public  were  complaining  because  the  rail- 
road companies  refused  to  carry  express  matter  themselves  on 
their  passenger  trains,  or  to  allow  it  to  be  carried  by  others,  dif- 
ferent questions  would  be  presented.    As  it  is,  we  have  only  to 

336 


EXPEESS   CASES.  §  86 

decide  whether  these  particular  express  companies  must  be  car- 
ried notwithstanding  the  termination  of  their  special  contract 
rights. 

The  difficulty  in  the  cases  is  apparent  from  the  form  of  the 
decrees.  As  express  companies  had  always  been  carried  by  rail- 
road companies  under  special  contracts,  which  established  the 
duty  of  the  railroad  company  upon  the  one  side,  and  fixed  the 
liability  of  the  express  company  on  the  other,  the  court,  in  de- 
creeing the  carriage,  was  substantially  compelled  to  make  for 
the  parties  such  a  contract  for  the  business  as  in  its  opinion  they 
ought  to  have  made  for  themselves.  Having  found  that  the  rail- 
road company  should  furnish  the  express  company  with  facili- 
ties for  business,  it  had  to  define  what  those  facilities  must  be, 
and  it  did  so  by  declaring  that  they  should  be  furnished  to  the 
same  extent  anfl  upon  the  same  trains  that  the  company  ac- 
corded to  itself  or  to  any  other  company  engaged  in  conducting 
an  express  business  on  its  line.  It  then  prescribed  the  time  and 
manner  of  making  the  payment  for  the  facilities  and  how  the 
payment  should  be  secured,  as  well  as  how  it  should  be  measured. 
Thus,  by  the  decrees,  these  railroad  companies  are  compelled  to 
carry  these  express  companies  at  these  rates,  and  on  these  terms, 
so  long  as  they  ask  to  be  carried,  no  matter  what  other  express 
companies  pay  for  the  same  facilities  or  what  such  facilities  may, 
for  the  time  being,  be  reasonably  worth,  unless  the  court  sees  fit, 
under  the  power  reserved  for  that  purpose,  on  the  application 
of  either  of  the  parties,  to  change  the  measure  of  compensation. 
In  this  way,  as  it  seems  to  us,  "the  court  has  made  an  arrange- 
ment for  the  business  intercourse  of  these  companies,  such  as, 
in  its  opinion,  they  ought  to  have  made  for  themselves,"  and 
that,  we  said  in  Atchison,  Topeka  and  Santa  Fe  R.  R.  Co.  v. 
Denver  &  New  Orleans  R.  R.  Co.,  110  U.  S.  667,  4  S.  Ct.  R.  185, 
followed  at  this  term  in  Pullman  Palace  Car  Co.  v.  Missouri 
Pacific  Ry.  Co.,  115  U.  S.  587,  6  S.  Ct.  R.  194,  could  not  be  done. 
The  regulation  of  matters  of  this  kind  is  legislative  in  its  char- 
acter, not  judicial.  To  Avhat  extent  it  must  come,  if  it  comes  at 
all,  from  Congress,  and  to  what  extent  it  may  come  from  the 
States,  are  questions  we  do  not  now  undertake  to  decide;  but 
that  it  must  come,  when  it  does  come,  from  some  source  of  legis- 
lative power,  we  do  not  doubt.  The  legislature  may  impose  a 
duty,  and  when  imposed  it  will,  if  necessary,  be  enforced  by 
the  courts,  but,  unless  a  duty  has  been  created  either  by  usage  or 
by  contract,  or  by  statute,  the  courts  cannot  be  called  on  to  give 
it  effect. 

The  decree  in  each  of  the  cases  is  reversed,  and  the  suit  is  re- 
manded, with  directions  to  dissolve  the  injunction,  and, 
22  337 


§§  86,  87    EIGHTS  AND  DUTIES  OF  COMMON  CAREIEK. 

after  adjusting  the  accounts  between  the  parties  for  business 
done  while  the  injunctions  were  in  force,  and  decreeing  the 
payment  of  any  amounts  that  may  be  found  to  be  due,  to 
dismiss  the  bills. 
Mr.  Justice  Miller  filed  an  opinion  vigorously  dissenting, 
with  which  Mr.  Justice  Field  concurred. 


87.     HART  V.  CHICAGO  AND  NORTHWESTERN  RAIL- 
WAY CO., 

69  Iowa  485,  29  N.  W.  R.  597.    1886. 

On  the  eighteenth  day  of  April,  1883,  plaintiff  delivered  to 
defendant,  at  the  city  of  Des  Moines,  one  car-load  of  property, 
which  the  latter  undertook  to  transport  to  the  town  of  Miller, 
in  Dakota  territory.  The  property  shipped  in  the  car  consisted 
of  six  horses,  two  wagons,  three  sets  of  harness,  a  quantity  of 
grain,  a  lot  of  household  and  kitchen  furniture,  and  personal 
effects.  The  contract  under  which  the  shipment  was  made  pro- 
vided that  the  horses  should  be  loaded,  fed,  watered  and  cared 
for  by  the  shipper  at  his  own  expense,  and  that  one  man  in 
charge  of  them  would  be  passed  free  on  the  train  that  carried 
the  car.  It  also  provided  that  no  liability  would  be  assumed 
by  the  defendant  on  the  horses  for  more  than  $100  each,  unless 
by  special  agreement  noted  on  the  contract,  and  no  such  special 
agreement  was  noted  on  the  contract.  Plaintiff  placed  a  man 
in  charge  of  the  horses,  and  he  was  permitted  to,  and  did,  ride 
in  the  car  with  them.  When  the  train  reached  Bancroft,  in  this 
state,  it  was  discovered  that  the  hay  which  was  carried  in  the 
ear  to  be  fed  to  the  horses  on  the  trip  was  on  fire.  The  car  was 
broken  open  and  the  man  in  charge  of  the  horses  was  found 
asleep.  The  trainmen  and  others  present  attempted  to  extin- 
guish the  fire,  but  before  they  succeeded  in  putting  it  out  the 
horses  were  killed,  and  the  other  property  destroyed.  This  ac- 
tion was  brought  to  recover  the  value  of  the  property.  There 
was  a  verdict  and  judgment  for  plaintiff,  and  defendant  ap- 
peals. 

Reed,  J. — I.  There  was  evidence  which  tended  to  prove  that 
the  fire  was  communicated  to  the  car  from  a  lantern  which  the 
man  in  charge  of  the  horses  had  taken  into  the  car.  This  lantern 
was  furnished  by  plaintiff,  and  was  taken  into  the  car  by 
his  direction.  Defendant  asked  the  circuit  court  to  instruct  the 
jury  that  if  the  fire  which  destroyed  the  property  was  caused 
by  a  lighted  lantern  in  the  sole  use  and  control  of  plaintiff's  ser- 

338 


HAET  V.  C.  AND  N.  W.  EY.  CO.  §  87 

vant,  who  was  in  the  car  in  charge  of  the  property,  plaintiff 
could  not  recover.  The  court  refused  to  give  this  instruction 
but  told  the  jury  that,  if  the  fire  was  occasioned  by  the  fault 
or  negligence  of  plaintiff's  servant,  who  was  in  charge  of  the 
property,  there  could  be  no  recovery.  The  jury  might  have 
found  from  the  evidence  that  the  fire  was  communicated  to  the 
hay  from  the  lantern,  but  that  plaintiff' 's  servant  was  not  guilty 
of  any  negligence  in  the  matter.  The  question  presented  by  this 
assignment  of  error,  then,  is  whether  a  common  carrier  is  re- 
sponsible for  the  injury  or  destruction  of  property,  while  it 
is  in  the  course  of  transportation,  w^hen  the  injury  is  caused 
by  some  act  of  the  owner,  but  which  is  unattended  with  any 
negligence  on  the  part  of  the  owner. 

The  carrier  is  held  to  be  an  insurer  of  the  safety  of  the  prop- 
erty while  he  has  it  in  possession  as  a  carrier.  His  undertaking 
for  the  care  and  safety  of  the  property  arises  by  the  implication 
of  law  out  of  the  contract  for  its  carriage.  The  rule  which  holds 
him  to  be  an  insurer  of  the  property  is  founded  upon  considera- 
tions of  public  policy.  The  reason  of  the  rule  is  that,  as  the 
carrier  ordinarily  has  the  absolute  possession  and  control  of  the 
property  while  it  is  in  course  of  shipment,  he  has  the  most 
tempting  opportunities  for  embezzlement  or  for  fraudulent  col- 
lusion with  others.  Therefore,  if  it  is  lost  or  destroyed  while  in 
his  custody,  the  policy  of  the  law  imposes  the  loss  upon  him. 
Coggs  V.  Bernard,  2  Ld.  Raym.,  909;  Forward  v.  Pittard,  1 
Durn.  &  E.,  27 ;  Riley  v.  Home,  5  Bing.,  217 ;  Thomas  v.  Railway 
Co.,  10  Met.  (Mass.)  472,  43  Am.  D.  444;  Roberts  v.  Turner,  12 
Johns.  (N.  Y.)  232,  7  Am.  D.  311;  Moses  v.  Railway  Co.,  24  N. 
H.  71,  55  Am.  D.  222 ;  Rixford  v.  Smith,  52  N.  H.  355,  13  Am.  R. 
42.  His  undertaking  for  the  safety  of  the  property,  however,  is 
not  absolute.  He  has  never  been  held  to  be  an  insurer  against 
injuries  occasioned  by  the  act  of  God,  or  the  public  enemy,  and 
there  is  no  reason  why  he  should  be ;  and  it  is  equally  clear,  we 
think,  that  there  is  no  consideration  of  policy  which  demands 
that  he  should  be  held  to  account  to  the  owner  for  an  injury 
which  is  occasioned  by  the  owner's  own  act;  and  whether  the 
act  of  the  owner  by  which  the  injury  was  caused  amounted  to 
negligence  is  immaterial  also.  If  the  immediate  cause  of  the  loss 
was  the  act  of  the  owner,  as  between  the  parties,  absolute  justice 
demands  that  the  loss  should  fall  upon  him,  rather  than  upon 
the  one  who  has  been  guilty  of  no  wrong;  and  it  can  make  no 
difference  that  the  act  cannot  be  said  to  be  either  wrongful  or 
negligent.  If,  then,  the  fire  which  occasioned  the  loss  in  ques- 
tion was  ignited  by  the  lantern  which  plaintiff's  servant,  by  his 
direction,  took  into  the  car,  and  which,  at  the  time,  was  in  the 

339 


§  §  87,  88     EIGHTS  AND  DUTIES  OF  COMMON  CAEEIEE. 

exclusive  control  and  care  of  the  servant,  defendant  is  not  lia- 
ble, and  the  question  whether  the  servant  handled  it  carefully 
or  otherwise  is  not  material.  This  view  is  abundantly  sustained 
by  the  authorities.  See  Hutch.  Carr.,  §  216,  and  cases  cited  in 
the  note;  also  Lawson  Carr.  §§  19,  23. 

(Omitting  other  questions.)     Judgment  reversed. 


88.    FORWARD  V.  PITTARD, 
1  Term  Rep.  27.    1785. 

This  was  an  action  on  the  case  against  the  defendant,  as  a 
common  carrier,  for  not  safely  carrying  and  delivering  the 
plaintifiP's  goods.  The  action  was  tried  at  the  last  summer  assizes 
at  Dorchester,  before  Mr.  Baron  Perryn,  when  the  jury  found  n. 
verdict  for  the  plaintiff,  subject  to  the  opinion  of  the  court  on 
the  following  case: 

"That  the  defendant  was  a  common  carrier  from  London  to 
Shaftesbury.  That  on  Thursday,  the  14th  of  October,  1784,  the 
plaintiff  delivered  to  him  on  Weyhill  twelve  pockets  of  hops 
to  be  carried  by  him  to  Andover,  and  to  be  by  him  forwarded 
to  Shaftesbury  by  his  public  road  wagon,  which  travels  from 
London  through  Andover  to  Shaftesbury.  That,  by  the  course 
of  traveling,  such  wagon  was  not  to  leave  Andover  till  the  Sat- 
urday evening  following.  That  in  the  night  of  the  following 
day  after  the  delivery  of  the  hops,  a  fire  broke  out  in  a  booth 
at  the  distance  of  about  100  yards  from  the  booth  in  which  the 
defendant  had  deposited  the  hops,  which  burnt  for  some  time 
with  unextinguishable  violence,  and  during  that  time  communi- 
cated itself  to  the  said  booth  in  which  the  defendant  had  de- 
posited the  hops,  and  entirely  consumed  them  without  any  actual 
negligence  in  the  defendant.  That  the  fire  was  not  occasioned 
by  lightning." 

Lord  Mansfield.  After  stating  the  case.  The  question  is, 
whether  the  common  carrier  is  liable  in  this  case  of  fire?  It  ap- 
pears from  all  the  cases  for  100  years  back  that  there  are  events 
for  which  the  carrier  is  liable  independent  of  his  contract.  By 
the  nature  of  his  contract,  he  is  liable  for  all  due  care  and  dili- 
gence ;  and  for  any  negligence  he  is  suable  on  his  contract.  But 
there  is  a  further  degree  of  responsibility  by  the  custom  of  the 
realm,  that  is,  by  the  common  law;  a  carrier  is  in  the  nature 
of  an  insurer.  It  is  laid  down  that  he  is  liable  for  every  acci- 
dent, except  by  the  act  of  God,  or  the  King's  enemies.     Now, 

340 


KAILEOAD   CO.   v.   REEVES.  §§88,89 

what  is  the  act  of  God  ?  I  consider  it  to  mean  something  in  oppo- 
sition to  the  act  of  man;  for  everything  is  the  act  of  God  that 
happens  by  his  permission;  everything,  by  his  knowledge.  But 
to  prevent  litigation,  collusion,  and  the  necessity  of  going  into 
circumstances  impossible  to  be  unravelled,  the  law  presumes 
against  the  carrier  unless  he  shows  it  was  done  by  the  King's 
enemies  or  by  such  act  as  could  not  happen  by  the  intervention 
of  man,  as  storms,  lightning,  and  tempests. 

If  an  armed  force  come  to  rob  the  carrier  of  the  goods,  he 
is  liable ;  and  a  reason  is  given  in  the  books,  which  is  a  bad  one, 
viz.,  that  he  ought  to  have  a  sufficient  force  to  repel  it ;  but  that 
would  be  impossible  in  some  cases,  as  for  instance  in  the  riots 
in  the  year  1780.  The  true  reason  is,  for  fear  it  may  give  room 
for  collusion,  that  the  master  may  contrive  to  be  robbed  on  pur- 
pose, and  share  the  spoil. 

In  this  case,  it  does  not  appear  but  that  the  fire  arose  from 
the  act  of  some  man  or  other.  It  certainly  did  arise  from  some 
act  of  man ;  for  it  is  expressly  stated  not  to  have  happened  by 
lightning.  The  carrier  therefore  in  this  case  is  liable,  inasmuch 
as  he  is  liable  for  inevitable  accident. 

Judgment  for  the  plaintiff. 


89.    RAILROAD  CO.  V.  REEVES, 

10  Wallace  (U.  8.)  176.     1869. 

Reeves  sued  the  Memphis  and  Charleston  Railroad  Company 
as  a  common  carrier  for  damage  to  a  quantity  of  tobacco  re- 
ceived by  it  for  carriage,  the  allegation  being  negligence  and 
want  of  due  care.  The  tobacco  came  by  rail  from  Salisbury, 
North  Carolina,  to  Chattanooga,  Tennessee,  reaching  the  latter 
place  on  the  5th  of  March,  1867.  At  Chattanooga  it  was  re- 
ceived by  the  INIemphis  and  Charleston  Railroad  Company  on 
the  5th  of  :March,  and  reloaded  into  two  of  its  cars,  about  five 
o'clock  in  the  afternoon. 

One  Price,  who  as  agent  of  Reeves  was  attending  and  looking 
after  the  tobacco  along  the  route,  testified  (though  his  testimony 
on  this  point  was  contradicted)  that  the  agent  of  the  company 
at  Chattanooga  promised  that,  if  the  bills  were  brought  over  in 
time,  the  tobacco  should  go  forward  at  six  o'clock  that  evening; 
and  shortly  before  that  time  informed  him  that  the  bills  had 
come  over,  and  assured  him  that  the  tobacco  would  go  off  at  that 
hour.    Had  it  gone  off  the  evening  of  the  5th  it  would  not  have 

341 


§  89  EIGHTS  AND  DUTIES  OF  COMMON  CAEKIEE. 

been  damaged.     An  unprecedented  flood  submerged  the  track 
and  injured  the  tobacco. 
Verdict  for  plaintiff. 

Miller,  J.  (Omitting  a  preliminary  point) .  As  to  the  charge 
given  by  the  court,  the  language  of  the  exception  is  more 
general  than  we  could  desire.  And  if  the  errors  of  this 
charge  were  less  apparent,  or  if  there  was  any  reason  to  suppose 
they  were  inadvertent,  and  might  have  been  corrected  if  speci- 
fied by  counsel  at  the  time,  we  would  have  some  difficulty  in 
holding  the  exception  to  it  sufficient.  But  the  whole  charge 
proceeds  upon  a  theory  of  the  law  of  common  carriers,  as  it  re- 
gards the  effect  of  loss  from  the  act  of  God,  on  the  contract, 
so  different  from  our  views  of  the  law  on  that  subject,  that 
it  needs  no  special  effort  to  draw  attention  to  it,  and  it  is  so 
clearly  and  frankly  stated  as  to  have  made  it  the  turning-point 
of  the  case. 

We  are  of  opinion,  then,  that  both  the  refusal  to  charge  as  re- 
quested and  the  charge  actually  given  are  properly  before  us 
for  examination.  As  regards  the  first,  we  will  only  notice  one 
of  the  rejected  instructions,  the  fourth.  It  was  prayed  in  these 
words : 

"When  the  damage  is  shown  to  have  resulted  from  the  im- 
mediate act  of  God,  such  as  a  sudden  and  extraordinary  flood, 
the  carrier  would  be  exempt  from  liability,  unless  the  plaintiff 
shall  prove  that  the  defendant  was  guilty  of  some  negligence 
in  not  providing  for  the  safety  of  the  goods.  That  he  could  do 
so  must  be  proven  by  the  plaintiff,  or  must  appear  in  the  facts 
of  the  case." 

It  is  hard  to  see  how  the  soundness  of  this  proposition  can 
be  made  clearer  than  by  its  bare  statement.  A  common  carrier 
assumes  all  risks  except  those  caused  by  the  act  of  God  and  the 
public  enemy.  One  of  the  instances  always  mentioned  by  the 
elementary  writers  of  loss  by  the  act  of  God  is  the  case  of  loss 
by  flood  and  storm.  Now,  when  it  is  shown  that  the  damage  re- 
sulted from  this  cause  immediately,  he  is  excused. 

What  is  to  make  him  liable  after  this?  No  question  of  his 
negligence  arises  unless  it  is  made  by  the  other  party.  It  is 
not  necessary  for  him  to  prove  that  the  cause  was  such  as  re- 
leases him,  and  then  to  prove  affirmatively  that  he  did  not  con- 
tribute to  it.  If,  after  he  has  excused  himself  by  showing  the 
presence  of  the  overpowering  cause,  it  is  charged  that  his  negli- 
gence contributed  to  the  loss,  the  proof  of  this  must  come  from 
those  who  assert  or  rely  on  it. 

The  testimony  in  the  case,  wholly  uncontradicted,  shows  one 

342 


EAILKOAD   CO.   V.  BEEVES.  §89 

of  the  most  sudden,  violent,  and  extraordinary  floods  ever  known 
in  that  part  of  the  country.  The  tobacco  was  being  transported 
from  Salisbury,  North  Carolina,  to  Memphis,  on  a  contract 
through  and  by  several  railroad  companies,  of  which  defendant 
was  one.  At  Chattanooga  it  was  received  by  defendant,  and 
fifteen  miles  out  the  train  was  arrested,  blocked  by  a  land  slide 
and  broken  bridges,  and  returned  to  Chattanooga,  when  the 
water  came  over  the  track  into  the  car  and  injured  the  tobacco. 

The  second  instruction  given  by  the  court  says  that  if,  while 
the  cars  were  so  standing  at  Chattanooga,  they  were  submerged 
by  a  freshet  which  no  human  care,  skill,  and  prudence  could 
have  avoided,  then  the  defendant  would  not  be  liable;  but  if 
the  cars  were  brought  within  the  influence  of  the  freshet  by  the 
act  of  defendant,  and  if  the  defendant  or  his  agent  had  not  so 
acted  the  loss  would  not  have  occurred,  then  it  was  not  the 
act  of  God,  and  defendant  would  be  liable.  The  fifth  instruc- 
tion given  also  tells  the  jury  that  if  the  damage  could  have  been 
prevented  by  any  means  within  the  power  of  the  defendant 
or  his  agents,  and  such  means  were  not  resorted  to,  then  the  jury 
must  find  for  plaintiff. 

In  contrast  with  the  stringent  ruling  here  stated,  and  as  ex- 
pressive of  our  view  of  the  law  on  this  point,  we  cite  two  de- 
cisions by  courts  of  the  first  respectability  in  this  country. 

In  Morrison  v.  Davis  &  Co.,  20  Pa.  St.  171,  57  Am.  D.  695, 
goods  being  transported  on  a  canal  w^ere  injured  by  the  wrecking 
of  the  boat,  caused  by  an  extraordinary  flood.  It  was  shown 
that  a  lame  horse  used  by  defendants  delayed  the  boat,  which 
would  otherw^ise  have  passed  the  place  W'here  the  accident  oc- 
curred in  time  to  avoid  the  injury.  The  court  held  that  the 
proximate  cause  of  the  disaster  was  the  flood,  and  the  delay 
caused  by  the  lame  horse  the  remote  cause,  and  that  the  maxim, 
causa  proxima,  non  remota  spectatur,  applied  as  well  to  con- 
tracts of  common  carriers  as  to  others.  The  court  further  held, 
that  when  carriers  discover  themselves  in  peril  by  inevitable 
accident,  the  law  requires  of  them  ordinary  care,  skill,  and  fore- 
sight, which  it  defines  to  be  the  common  prudence  which  men  of 
business  and  heads  of  families  usually  exhibit  in  matters  that 
are  interesting  to  them. 

In  Denny  v.  New  York  Central  R.  E.  Co.,  13  Gray  481,  74  Am. 
D.  645,  the  defendants  were  guilty  of  a  negligent  delay  of  six 
days  in  transporting  wool  from  Suspension  Bridge  to  Albany, 
and  while  in  their  depot  at  the  latter  place  a  few  days  after  it 
was  submerged  by  a  sudden  and  violent  flood  in  the  Hudson 
River.  The  court  says  that  the  flood  was  the  proximate  cause  of 
the  injury,  and  the  delay  in  transportation  the  remote  one ;  that 

343 


§  §  89,  90    EIGHTS  AND  DUTIES  OF  COMMON  CAKEIEE. 

the  doctrine  we  have  just  stated  governs  the  liabilities  of  com- 
mon carriers  as  it  does  other  occupations  and  pursuits,  and  it 
cites  with  approval  the  case  of  Morrison  v.  Davis  &  Co. 

Of  the  soundness  of  this  principle  we  are  entirely  convinced, 
and  it  is  at  variance  with  the  general  groundwork  of  the  court's 
charge  in  this  case. 

As  the  case  must  go  back  for  a  new  trial,  there  is  another 
error  which  we  must  notice,  as  it  might  otherwise  be  repeated. 
It  is  the  third  instruction  given  by  the  court,  to  the  effect  that 
if  defendant  had  contracted  to  start  with  the  tpbacco  the  evening 
before,  and  the  jury  believe  if  he  had  done  so  the  train  would 
have  escaped  injury,  then  the  defendant  was  liable.  Even  if 
there  had  been  such  a  contract,  the  failure  to  comply  would 
have  been  only  the  remote  cause  of  the  loss. 

But  all  the  testimony  that  was  given  is  in  the  record,  and  we 
see  nothing  from  which  the  jury  could  have  inferred  any  such 
contract,  or  which  tends  to  establish  it,  and  for  that  reason  no 
such  instruction  should  have  been  given. 

Judgment  reversed  and  a  new  trial  ordered. 


90.     PINGREE  V.  DETROIT,  LANSING  AND  NORTHERN 
RAILROAD  CO., 

66  Midi.  143;  33  N.  W.  B.  298;  11  Am.  St.  B.  479.    1887. 

Case,  against  a  common  carrier  for  failure  to  deliver  a  con- 
signment of  boots  and  shoes  to  plaintiffs. 

Campbell,  C.  J.  This  case  presents  a  single  question  on  facts 
found. 

Plaintiffs  had  a  chattel  mortgage  against  Francis  M.  and 
Myron  C.  Butts,  which  was  made  on  August  4,  1886.  The  next 
day,  the  two  Butts  made  a  transfer  of  the  property  to  one  Steere. 
Plaintiffs  replevied  from  Steere,  and  on  August  12  shipped 
the  goods  by  defendant's  railroad  from  Edmore,  directed  to 
Detroit,  taking  the  usual  bill  of  lading.  On  the  same  day,  the 
goods  were  taken  by  the  sheriff  at  Stanton,  on  an  attachment 
against  said  F.  M.  and  M.  C.  Butts,  in  favor  of  John  W.  Fuller 
and  others.  Defendant  notified  plaintiffs  of  this  seizure.  Plain- 
tiffs now  sue  defendant  for  not  delivering  the  goods  at  Detroit. 
The  question  is,  whether  the  seizure  by  the  sheriff'  exonerated 
defendant  from  such  delivery.  The  court  below  held  that  it 
did. 

There  seems  to  be  a  little  apparent  conflict  between  the  cases 

344 


PINGREE  V.  D.,  L.  AND  N.  R.  R.   CO.  §  90 

on  this  question,  but  there  can  be  no  doubt  where  the  rule  of 
justice  lies.  If  the  carrier  could  rely  against  all  the  world 
upon  the  right  of  the  consignor  to  intrust  him  with  possession, 
then  it  would  be  reasonable  to  hold  him  estopped  from  question- 
ing that  title.  But  there  is  no  authority  for  such  immunity. 
The  true  owner  may  take  his  property  from  a  carrier  as  well  as 
from  any  one  else.  If  a  carrier  gets  property  from  a  person 
not  authorized  to  direct  its  shipment,  he  has  been  declared  by 
the  supreme  court  of  this  state  to  have  no  lien  for  his  services, 
and  no  right  to  retain  the  property :  Fitch  v.  Newberry,  1  Doug. 
1;  40  Am.  Dec.  33.  There  is  no  sense  or  justice  in  enabling  a 
consignor  to  compel  a  carrier,  at  his  peril,  to  defend  a  title  that 
he  knows  nothing  about,  and  has  no  means  of  defending,  unless 
the  consignor  gives  it  to  him.  In  the  present  case,  the  attach- 
ment was  against  plaintiffs'  mortgagors,  and  was  regular.  It 
must  have  been  levied  on  the  claim  that  plaintiffs  had  no  right 
to  the  goods.  Defendant  could  not  have  resisted  the  seizure  with- 
out incurring  the  risk  of  serious  civil,  and  perhaps  criminal,  lia- 
bility; and  if  plaintiff's'  claim  is  correct,  this  must  have  been 
done  at  defendant's  own  risk  and  expense. 

This  precise  question  was  decided  in  favor  of  the  carrier  in 
Stiles  v.  Davis,  1  Black,  101,  upon  the  ground  that  defendant 
was  not  required  to  resist  the  sheriff,  and  could  not  properly 
do  so.  This  rule  has  been  adhered  to  by  the  United  States  su- 
preme court,  and  followed  to  a  considerable  extent.  It  is  the 
only  rule  compatible  with  public  order.  A  carrier  must  other- 
wise resist  the  officer,  or  find  some  one  who  will  swear  out  a  re- 
plevin, which  a  carrier  usually  has  not  knowledge  enough  to 
justify.  If  the  carrier  cannot  call  on  the  consignor  to  defend, 
and  must  take  the  risk  and  the  loss,  his  position  would  be  one 
of  hopeless  weakness.  If  he  declines  to  accept  custody  of  goods, 
he  runs  the  risk  of  an  action ;  and  if  a  wrongful  holder,  by  doubt- 
ful title,  or  even  by  theft,  compels  him  to  receive  the  consign- 
ment, he  can  get  the  value  from  the  carrier  who  has  had  them 
seized  by  the  true  owner,  unless  the  carrier  has  means  of  proof, 
that  he  never  can  be  presumed  to  have,  of  the  lack  of  interest 
in  the  shipper. 

Whatever  may  be  a  carrier's  duty  to  resist  a  forcible  seizure 
without  process,  he  cannot  be  compelled  to  assume  that  regular 
process  is  illegal,  and  to  accept  all  the  consequences  of  resisting 
officers  of  the  law.  If  he  is  excusable  for  yielding  to  a  public 
enemy,  he  cannot  be  at  fault  for  yielding  to  actual  authority 
what  he  may  yield  to  usurped  authority. 

I  think  the  judgment  should  be  affirmed. 

345 


f  91  EIGHTS  AND  DUTIES  OF  COMMON  CAEEIEB. 

91.     STILES  V.  DA^^S, 

1  Black  i  r.  S.)  lul.     1S61. 

Tkovzr  against  defendants,  common  carriers,  for  goods  of  the 
ralue  of  $4,0OC».    Verdict  for  plaintiff  for  ^3,041.14. 

Nelson,  J.  The  case  was  tins:  The  plaintiffs  below,  Davis 
and  Barton,  had  purchased  the  remnants  of  a  store  of  dry  goods 
of  the  assignee  of  a  firm  at  JanesTille.  Wisconsin,  who  had  failed, 
and  made  an  assignment  for  the  benefit  of  their  creditors.  The 
goods  were  packed  in  boxes,  and  delivered  to  the  agents  of  the 
Union  Despatch  Company  to  be  conveyed  by  railroad  to  Ilion, 
Herkimer  county.  New  York. 

On  the  arrival  of  the  goods  in  Chicago,  on  their  way  to  the 
place  of  destination,  they  were  seized  by  the  sheriff",  under  an 
attachment  issued  in  behalf  of  the  creditors  of  the  insolvent 
firm,  at  Janesville,  as  the  property  of  that  firm,  and 
the  defendant,  one  of  the  proprietors  and  agent  of  the  Union 
Despatch  Company  at  Chicago,  was  summoned  as  garnishee. 
The  goods  were  held  by  the  sheriff,  under  the  attachment,  until 
judgment  and  execution,  when  they  were  sold.  They  were  at- 
tached, and  the  defendant  summoned  on  the  third  of  Novem- 
ber, 1S57 ;  and  some  days  afterwards,  and  before  the  commence- 
ment of  this  suit,  which  was  on  the  sixteenth  of  the  month,  the 
plaintiffs  made  a  demand  on  the  defendant  for  their  goods,  which 
was  refused,  on  the  ground  he  had  been  summoned  as  garnishee 
in  the  attachment  suit. 

The  court  below  charged  the  jur^-,  that  any  proceedings  in 
the  State  court  to  which  the  plaintiffs  were  not  parties,  and  of 
which  they  had  no  notice,  did  not  bind  them  or  their  property ; 
and  further,  that  the  fact  of  the  goods  being  garnished,  as  the 
propeiiy  of  third  persons,  of  itself,  under  the  circumstances  of 
the  case,  constituted  no  bar  to  the  action :  but  said  the  jury  might 
weigh  that  fact  in  determining  whether  or  not  there  was  a  con- 
version. 

TVe  think  the  court  below  erred.  After  the  seizure  of  the 
goods  by  the  sheriff,  under  the  attachment,  they  were  in  the 
custody  of  the  law  and  the  defendant  could  not  comply  with 
the  demand  of  the  plaintiff's  without  a  breach  of  it,  even  admit- 
ting the  goods  to  have  been,  at  the  time,  in  his  actual  possession. 
The  case,  however,  shows  that  they  were  in  the  possession  of 
the  sheriff's  officer  or  agent,  and  continued  there  until  disposed 
of  under  the  judgment  upon  the  attachment.  It  is  tme.  that 
these  goods  had  been  delivered  to  the  defendant,  as  carriers,  by 

346 


BEXNETT    V.    AMEEICAX    EXPEESS    CO.  §§91,92 

the  plaintiffs,  to  be  conveyed  for  them  to  the  place  of  destina- 
tion, and  were  seized  under  an  attachment  agaiast  third  per- 
sons ;  but  this  circumstance  did  not  impair  the  legal  effect  of  the 
seizure  or  custody  of  the  goods  under  it,  so  as  to  justify  the  de- 
fendant in  taking  them  out  of  the  hands  of  the  sheriff.  The 
right  of  the  sheriff'  to  hold  them  was  a  question  of  law,  to  be  de- 
termined by  the  proper  legal  proceedings,  and  not  at  the  will 
of  the  defendant,  nor  that  of  the  plaintiffs.  The  law  on  this 
subject  is  well  settled,  as  may  be  seen  on  a  reference  to  the  cases 
collected  in  sections  453,  290,  350,  of  Drake  on  Attach 't,  2d 
edition. 

This  precise  question  was  determined  in  Yerrall  v.  Robinson 
(Turwhitt's  Exch.  R.,  1069;  4  Dowling,  242.  S.  C).  There  the 
plaintiff  was  a  coach  proprietor,  and  the  defendant  the  owner 
of  a  carriage  depository  in  the  city  of  London.  One  Banks  hired 
a  chaise  from  the  plaintiff,  and  afterwards  left  it  at  the  de- 
fendant's depositor}'.  "While  it  remained  there,  it  was  attached 
in  an  action  against  Banks;  and,  on  that  ground,  the  defendant 
refused  to  deliver  it  up  to  the  plaintiff'  on  demand,  although  he 
admitted  it  to  be  his  proper^.'. 

Lord  Abinger,  C.  B.,  observed,  that  the  defendant's  refusal  to 
deliver  the  chaise  to  the  plaintiff  was  grounded  on  its  being  on 
his  premises,  in  the  custody  of  the  law.  That  this  was  no  evi- 
dence of  a  wi'ongful  conversion  to  his  own  use.  After  it  was 
attached  as  Bank's  property,  it  was  not  in  the  custody  of  the 
defendant,  in  such  a  manner  as  to  permit  him  to  deliver  it  up 
at  all.  And  Alderson,  B..  observed:  Had  the  defendant  de- 
livered it,  as  requested,  he  would  have  been  guilty  of  a  breach  of 
law. 

The  plaintiff's  have  mistaken  their  remedy.  They  should  have 
brought  their  action  against  the  officer  who  seized  the  goods,  or 
against  the  plaintiffs  in  the  attachment  suit,  if  the  seizure  was 
made  under  their  direction.  As  to  these  parties,  the  process  be- 
ing against  third  persons,  it  would  have  furnished  no  justifica- 
tion, if  the  plaintiff'  could  have  maintained  a  title  and  right  to 
possession  in  themselves. 

Judgment  of  the  court  below  reversed,  and  vcriire  de  novo,  etc. 


^  92.    BENNETT  V.  AAIERICAN  EXPRESS  CO., 

83  Me.  236;  22  Atl  B.  159;  23  Am.  St.  E.  774.    1891. 

Foster.  J.  It  is  undisputed  that  the  plaintiff  was  lawfully  pos- 
sessed and  the  owner  of  the  saddles  of  three  deer  which  were 

347 


§  92  EIGHTS  AND  DUTIES  OF  COMMON  CAEEIEE. 

legally  killed  under  the  laws  of  this  state;  that  the  same  were^ 
closely  boxed,  in  good  condition  for  shipment,  and  delivered  by 
the  plaintiff  onto  the  platform  of  the  Maine  Central  Railroad 
Company,  at  Newport  station,  plainly  marked  to  the  consignees 
in  Boston,  The  defendants'  agent  was  notified  that  the  box  was 
left  for  transportation,  and  thereupon  he  delivered  it  into  the 
defendants'  car,  on  the  arrival  of  the  train,  but  no  receipt  or 
bill  of  lading  was  ever  given  to  the  plaintiff.  Upon  the  arrival 
of  the  train  at  Augusta,  the  saddles  were  seized  by  a  game  war- 
den, and  by  him  removed  from  the  defendants'  car,  without 
a-ny  search  warrant  or  other  legal  process,  and  without  objec- 
tions from  the  defendant  company  or  their  agents,  and  have 
never  since  been  delivered,  either  to  the  consignees  or  the  ex- 
press company. 

Upon  the  facts  thus  stated,  the  defendants'  liability  is  fully 
established.  *  The  plaintiff's  ownership  of  the  property,  its  de- 
livery to  the  defendants  for  transportation,  and  their  accept- 
ance for  that  purpose,  and  its  non-delivery  to  the  consignees,  are 
prima  facie  evidence  of  negligence.  The  burden  is  therefore 
upon  the  defendants  to  show  facts  exempting  them  from  liabil- 
ity :  Little  v.  Boston  and  Maine  R.  R.  Co.,  66  Me.  241. 

The  property  of  the  plaintiff  while  in  the  hands  of  the  de- 
fendants as  common  carriers,  in  transitu,  was  seized  by  an  officer, 
without  any  warrant  or  other  legal  process.  Nor  does  it  appear 
that  any  was  ever  obtained.  The  officer  was,  therefore,  a  mere 
trespasser,  and  the  defendants  were  liable,  under  the  rule  of  the 
common  law,  in  the  same  manner  as  if  they  had  allowed  any 
other  trespasser  to  take  the  property  out  of  their  custody:  Ed- 
wards V.  White  Line  Transit  Co.,  104  Mass.  163,  6  Am.  Rep.  213. 
As  against  the  plaintiff,  the  seizure  was  of  no  more  validity  than 
a  trespass  of  an  unofficial  person.  There  has  never  been  any 
adjudication  from  any  tribunal  that  the  property  seized  was 
contraband,  or  other  than  the  lawful  property  of  the  plaintiff. 
The  common  carrier  is  not  relieved  from  the  fulfillment  of  his 
contract,  or  his  liability  as  such  carrier,  any  more  than  if  the 
loss  had  occurred  from  fire,  theft,  robbery,  or  accident.  He 
stands  in  the  relation  of  insurer,  where,  as  in  this  case,  no  special 
contract  is  shown,  and,  upon  grounds  of  public  policy,  is  liable 
for  all  losses  resulting  from  accident,  trespass,  theft,  or  any  kind 
of  unlawful  dispossession  of  the  property  intrusted  to  him  to 
carry, — excepting  only  such  as  arise  by  the  act  of  God  or  public 
enemies:  Adams  v.  Scott,  104  Mass.  166;  Kiff  v.  Old  Colony 
and  Newport  R'y  Co.,  117  Mass.  593,  19  Am.  Rep.  429;  Fille- 
brown  v.  Grand  Trunk  R'y  Co.,  55  Me.  462,  92  Am.'Dec.  606. 

In  the  case  of  Edwards  v.  White  Line  Transit  Co.,  104  Mass. 

348 


BENNETT    v.    AMERICAN    EXPRESS    CO.  §  92 

163,  6  Am.  Rep.  213,  it  was  held  that  while  the  carrier  was  not 
liable  in  trover  for  conversion  of  the  property,  he  was,  neverthe- 
less, liable  on  his  contract  or  obligation  as  common  carrier,  where 
the  officer  seizing  the  property  was  a  trespasser.  "The  owner 
may,  it  is  true,"  say  the  court,  "maintain  trover  against  the 
officer  who  took  the  property  from  the  carrier;  but  he  is  not 
obliged  to  resort  to  him  for  his  remedy.  He  may  proceed  di- 
rectly against  the  carrier  upon  his  contract,  and  leave  the  car- 
rier to  pursue  the  property  in  the  hands  of  those  who  have 
wrongfully  taken  it  from  him." 

(After  deciding  that  the  game  laws  would  not  justify  de- 
fendants in  refusing  to  ship  the  property.) 

The  box  was  delivered  to  and  received  by  the  company.  No 
information  was  asked  concerning  its  contents,  and  none  given. 
If  the  plaintiff  knew  by  report,  when  he  delivered  the  property 
to  the  defendants,  that  their  agents  had  been  directed  not  to 
receive  any  deer  or  parts  thereof,  yet  there  was  no  limitation  of 
the  company's  responsibility  by  special  contract,  or  such  knowl- 
edge brought  home  to  this  plaintiff,  and  assented  to  by  him,  as 
would  be  necessary  to  limit  such  responsibility:  Fillebrown  v. 
Grand  Trunk  R'y  Co.,  55  Me.  462,  92  Am.  Dec.  606.  "A  com- 
mon carrier  may  limit  his  responsibility  for  property  intrusted 
to  him,"  says  Bigelow,  C.  J.,  in  Buckland  v.  Adams  Exp.  Co., 
97  Mass.  125,  93  Am.  Dec.  68,  "by  a  notice  containing  reasonable 
and  suitable  restrictions,  if  brought  home  to  the  owner  of  goods 
delivered  for  transportation,  and  assented  to  clearly  and  un- 
equivocally by  him.  It  is  also  settled  that  absent  is  not  neces- 
sarily to  be  inferred  from  the  mere  fact  that  knowledge  of  such 
notice  on  the  part  of  an  owner  or  consignor  of  goods  is  shown. 
The  evidence  must  go  further,  and  be  sufficient  to  show  that 
the  terms  on  which  the  carrier  proposed  to  carry  the  goods  were 
adopted  as  the  contract  between  the  parties  according  to  which 
the  service  of  the  carrier  was  to  be  rendered." 

It  is  undoubtedly  the  right  of  the  carrier  to  require  good 
faith  on  the  part  of  those  who  deliver  goods  to  be  carried,  or 
enter  into  contracts  with  him.  The  degree  of  care  to  be  exer- 
cised, as  well  as  the  amount  of  compensation  for  the  carriage  of 
property,  depends  largely  on  its  nature  and  value,  and  no  fraud 
or  cleception  should  be  used  which  would  mislead  the  carrier  as 
to  the  extent  of  his  duties  or  the  risks  which  he  assumes.  But 
we  fail  to  see  any  such  evidence  of  fraud  or  deception  in  this 
case  as  would  exonerate  these  defendants. 

This  property  was  lawfully  the  property  of  the  plaintiff;  it 
was  delivered  to  and  accepted  by  the  defendant  company  for 
transportation  to  a  point  beyond  the  limits  of  this  state.     Their 

349 


§§  92,93     EIGHTS  AND  DUTIES  OF  COMMON  CAKKIEE. 

liability  as  common  carriers  held  them  to  a  strict  fulfillment  of 
their  obligation  in  relation  to  the  property  in  their  charge.  That 
obligation  was  not  merely  to  transport  the  property  in  this  state, 
but  to  a  point  outside  of  its  limits,  in  another  state.  It  had  law- 
fully conmieneed  to  move  as  an  article  of  commerce  from  one 
state  to  another.  From  that  moment  it  became  the  subject  of 
interstate  commerce,  and,  as  such,  was  subject  only  to  national 
^regulation,  and  not  to  the  police  power  of  the  state.  The  same 
is  unquestionably  true  in  relation  to  whatever  agency  or  instru- 
mentality may  be  used  as  the  means  of  transporting  such  com- 
modities as  may  lawfully  become  the  subject  of  purchase,  sale, 
or  exchange,  under  the  commerce  clause  of  the  constitution  of  the 
United  States.  The  transportation  of  the  subject  of  interstate 
commerce,  where  it  is  such  as  may  lawfuly  be  purchased,  sold, 
or  exchanged,  is,  without  doubt,  a  constituent  of  commerce  itself, 
and  is  protected  by  and  subject  only  to  the  regulation  of  Con- 
gress :  The  Daniel  Ball,  10  Wall.  557,  565 ;  Bowman  v.  Chicago 
etc.  Ry.  Co.,  125  U.  S.  465,  485,  8  S.  Ct.  R.  689;  County  of 
Mobile  V.  Kimball,  102  IT.  S.  691 ;  Welton  v.  Missouri,  91  U.  S. 
275 ;  Coe  V.  Errol,  116  U.  S.  517,  6  S.  Ct.  R.  475 ;  Leisy  v.  Hardin, 
135  U.  S.  100,  10  S.  Ct.  R.  681. 

Defendants  to  be  defaulted;  damages  to  be  assessed  at  nisi 
prius. 


93.     ORANGE  CO.  BANK  V.  BROWN, 

9  Wend.  (N.  Y.)  85,  24  Am.  D.  129.    1832. 

Case,  against  a  carrier  for  negligence  resulting  in  the  loss  of 
a. trunk  containing  $11,250.  The  plaintiff  bank  had  requested  one 
Phillips  to  bring  to  it  from  the  Bank  of  America  seven  sealed 
packages  of  bank  notes  of  the  above  value,  advising  him  to  put 
them  in  charge  of  the  captain  of  defendant's  steamboat.  He 
informed  the  captain  or  clerk  that  he  had  a  trunk  *'of  impor- 
tance ' '  which  he  wished  to  put  in  the  office.  At  their  suggestion 
he  put  the  trunk  behind  the  door  till  they  should  get  under  way. 
He  then  went  ashore  for  a  few  minutes  and  on  returning  found 
the  trunk  was  gone. 

By  Court,  Nelson,  J.  This  case  is  peculiar  in  many  of  its 
features,  and  must  be  determined  by  a  recurrence  to  some  of 
the  general  and  fundamental  principles  which  govern  actions 
of  this  kind.  The  rule  of  the  common  law  in  relation  to  com- 
mon carriers  has  been  frequently  pronounced  a  rigorous  one, 
and  its  vindication  by  Lord  Holt  affords  abundant  evidence,  if 

350 


ORANGE   CO.   BANK  v.   BROWN.  §  93 

any  were  wanting,  of  the  truth  of  the  observation.  He  says,  in 
Lane  v.  Cotton,  1  Vin.  Abr.  219,  though  one  may  think  it  a 
hard  case  that  a  poor  carrier  that  is  robbed  on  the  road,  with- 
out any  manner  of  default  in  him,  should  be  answerable  for  all 
the  goods  he  takes,  yet  the  inconveniency  would  be  far  more 
intolerable  if  it  were  not  so,  for  it  would  be  in  his  power  to 
combine  with  robbers,  or  to  pretend  a  robbery  or  some  other 
accident,  without  a  possibility  of  remedy  to  the  party,  and  the 
law  will  not  expose  him  to  so  great  a  temptation.  This  reason, 
which  I  believe  is  the  only  one  that  has  ever  been  given  for  the 
origin  of  the  rule,  and  which  probably  had  much  foundation 
in  fact  in  the  early  and  rude  age  in  which  it  must  have  been 
established,  it  is  obvious,  at  this  day,  is  nearly  as  applicable  to 
every  person  intrusted  with  the  property  of  another,  as  it  is  to 
the  common  carrier.  In  proportion,  however,  to  the  rigor  of 
the  liability,  was  exacted  the  compensation  for  it  and  the  means 
of  enforcing  payment,  which  affords  a  sort  of  equivalent  for  the 
harshness  of  the  rule.  Accordingly  we  find  it  frequently  laid 
down  in  actions  of  this  kind,  as  a  fundamental  proposition,  that 
the  common  carrier  is  liable  in  respect  to  his  reward,  and  that 
the  compensation  should  be  in  proportion  to  the  risk.  So  strictly 
was  this  rule  adhered  to  that  it  was  repeatedly  decided  by 
Lord  Holt  that  the  hackney  coachman  was  not  liable  for  the 
traveling  trunk  of  the  passenger  which  was  lost,  unless  a  dis- 
tinct price  had  been  paid  for  the  trunk  as  well  as  for  the  per- 
son ;  and  that  where  it  was  the  custom  of  the  stage  coach  for  pas- 
sengers to  pay  for  baggage  above  a  certain  weight,  the  coachman 
was  responsible  only  for  the  loss  of  goods  beyond  such  weight : 
1  Vin.  Abr.  220,  and  cases  there  cited.  So  in  the  analogous  case 
of  the  innkeeper,  if  a  guest  stops  at  an  inn,  and  departs  for  a 
few  days,  leaving  his  goods;  if  they  are  stolen  during  his  ab- 
sence, the  landlord  is  not  liable  as  innkeeper,  for  at  the  time 
of  the  loss  the  owner  was  not  his  guest,  and  he  had  no  benefit  from 
the  keeping  of  the  goods :  Cro.  Jac.  188 ;  1  Vin.  Abr.  225.  It  has 
since  been  determined  that  the  stage  coachman  is  responsible 
for  the  baggage  of  the  passenger,  though  no  distinct  price  was 
paid  for  it,  upon  the  ground,  however,  still  consistent  with  the 
principle  of  the  above  cases,  to  wit,  that  the  reward  for  carrying 
the  same  was  included  in  the  fare  for  the  passenger:  1  Wheat. 
Selw.  301,  n.  1. 

Now,  upon  the  ground  that  the  defendants  in  this  case  have 
received  no  compensation  or  reward  from  the  plaintiffs  or  any 
other  person  for  the  transportation  or  risk  of  the  money  in 
question,  and  that  they  were  deprived  of  such  reward  by  the 
unfair  dealing  of  the  agent  of  the  plaintiffs  with  the  defend- 

351 


§  93  EIGHTS  AND  DUTIES  OF  COMMON  CAERIER. 

ants,  I  am  of  opinion  the  plaintiffs  cannot  recover,  and  that 
they  were  properly  nonsuited  upon  the  trial.  As  a  general  rule, 
where  there  has  been  no  qualified  acceptance  of  goods  by  special 
agreement,  or  where  an  agreement  cannot  be  inferred  from 
notice,  the  carrier  is  bound  to  make  inquiry  as  to  the  value  of  the 
box  or  article  received,  and  the  owner  must  answer  truly  at  his 
peril;  and  if  such  inquiries  are  not  made,  and  it  is  received  at 
such  price  for  transportation  as  is  asked  with  reference  to  its 
bulk,  weight,  or  external  appearance,  the  carrier  is  responsible 
for  the  loss,  whatever  may  be  its  value.  If  he  has  given  general 
notice  that  he  will  not  be  liable  over  a  certain  amount,  unless  the 
value  is  made  known  to  him  at  the  time  of  delivery,  and  a  premi- 
um for  insurance  paid,  such  notice,  if  broi\ght  home  to  the  knowl- 
edge of  the  owner  (and  courts  and  juries  are  liberal  in  inferring 
such  knowledge  from  the  publication  of  the  notice),  is  as  ef- 
fectual in  qualifying  the  acceptance  of  the  goods  as  a  special 
agreement,  and  the  owner,  at  his  peril,  must  disclose  the  value, 
and  pay  the  premium.  The  carrier  in  such  case  is  not  bound  to 
make  the  inquiry,  and  if  the  owner  omits  to  make  known  the 
value,  and  does  not  therefore  pay  the  premium  at  the  time  of 
the  delivery,  it  is  considered  as  dealing  unfairly  with  the  car- 
rier, and  he  is  liable  only  to  the  amount  mentioned  in  his  notice, 
or  not  at  all,  according  to  the  terms  of  his  notice :  1  Wheat.  Selw. 
305,  306,  308,  and  notes;  6  Com.  L.  R.  333  (1st  Am.  Ed.)  ;  4 
Burr.  2298 ;  5  Com.  L.  R.  476 ;  8  Pick.  182 ;  11  Com.  L.  R.  243. 

In  this  case  no  notice  has  been  given  by  the  defendants  limiting 
their  responsibility,  and  they  are  no  doubt  liable  to  the  full  value 
of  the  baggage  of  the  passenger  lost,  or  of  the  goods  lost,  which 
they  have  received  without  any  special  agreement  qualifying 
the  risk  for  transportation.  The  defendants  cannot  succeed  upon 
this  ground.  But  in  the  absence  of  notice,  if  any  means  are  used 
to  conceal  the  value  of  the  article,  and  thereby  the  owner  avoids 
paying  a  reasonable  compensation  for  the  risk,  this  unfairness 
and  its  consequence  to  the  defendants,  upon  the  principles  of 
common  justice  as  well  as  those  peculiar  to  this  action,  will  ex- 
e]npt  them  from  the  responsibility ;  for  such  a  result  is  alike  due 
to  the  defendants,  who  have  received  no  reward  for  the  risk, 
and  to  the  party  who  has  been  the  cause  of  it  by  means  of  dis- 
ingenuous and  unfair  dealing.  Thus,  where  the  plaintiff  deliv- 
ered to  the  carrier  a  box,  telling  him  there  was  a  book  and  to- 
bacco in  it,  when  it  contained  one  hundred  pounds,  and  it  was 
lost,  he  should  not  recover.  It  is  true  that  in  such  a  case  a  party 
did  recover,  though  Rolle,  C.  J.,  considered  it  a  cheat;  but  it  is 
clear  that  at  this  day  he  could  not  recover :  4  Burr.  2301. 

So,  where  a  box,  in  which  there  was  a  large  sum  of  money, 

352 


OEANGE    CO.   BANK   v.   BROWN.  §  93 

was  brought  to  a  carrier,  who  inquired  its  contents,  and  was  an- 
swered it  was  filled  with  silk,  upon  which  it  was  taken  and  lost,  it 
was  held  the  owner  could  not  recover:  4  Burr.  2301.  So  where 
a  bag  sealed  was  delivered  to  a  carrier,  and  was  said  to  contain 
two  hundred  pounds,  and  a  receipt  was  given  for  the  same, 
when,  in  fact,  it  contained  four  hundred  pounds,  and  it  was 
lost,  the  carrier  was  held  answerable  only  for  the  two  hundred 
pounds,  as  the  reward  extended  no  farther:  Id.;  Selw.  305  (n.) 
These  cases  all  proceed  upon  the  ground  that  the  carrier  is  de- 
prived of  his  reward  for  the  extra  value  of  the  article,  and  con- 
sequent extra  risk  incurred,  by  means  of  the  unfair  if  not  fraud- 
ulent conduct  of  the  owner,  and  therefore  the  rigor  of  the  com- 
mon law  rule  is  not  applied  to  him,  and  he  is  only  held  responsi- 
ble for  the  loss  in  case  of  gross  negligence.  If  the  defendants 
are  to  be  made  responsible  to  the  plaintiffs  through  the  medium 
and  acts  of  their  agent,  who  was  employed  to  carry  the  money 
from  New  York  to  the  bank,  the  plaintiffs  also  must  be  held  re- 
sponsible to'  the  defendant  for  his  conduct ;  the  obligation  must 
be  reciprocal.  Instead  of  committing  the  several  packages  of 
money  to  the  captain,  which  of  themselves  generally  indicat.:^ 
their  value,  and  in  this  case  would  have  done  so,  as  the  figures 
(by  which  I  understand  the  quantity  of  money  in  each  package) 
could  be  seen  upon  them,  and  thereby  enable  the  captain  to  exact 
a  reasonable  compensation  for  the  risk,  and  apprise  him  of  the 
necessity  of  greater  care  and  caution  in  the  safe  conveyance  of 
the  money,  which  he  naturally  would  bestow  in  proportion  to  the 
value,  the  agent  of  the  plaintiffs  put  them  into  his  trunk,  and 
committed  it  to  the  captain  as  his  baggage,  affording  no  other 
indication  of  the  value  of  its  contents  than  that  it  was  a  trunk 
of  importance.  This  was  enough  to  attract  the  attention  of  the 
felon  who  might  be  standing  by  to  its  contents,  but  certainly  was 
not  calculated  to  afford  information  to  the  captain  of  the  ex- 
traordinary character  and  value  of  those  contents.  The  captain 
might  understand  he  had  a  costly  wardrobe  and  other  neces- 
saries and  conveniences  for  traveling  of  great  value,  but  not  that 
the  trunk  contained  eleven  thousand  dollars  in  bank  bills,  which 
the  traveler  was  carrying  for  hire  or  friendship,  and  not  as 
traveling  expenses. 

It  may  be  difficult  to  define  with  technical  precision  what  may 
legitimately  be  included  in  the  term  baggage,  as  used  in  connec- 
tion with  traveling  in  public  conveyances;  but  it  may  be  safely 
asserted  that  money,  except  what  may  be  carried  for  the  ex- 
penses of  traveling,  is  not  thus  included,  and  especially  a  sum 
like  the  present,  which  was  taken  for  the  mere  purpose  of  trans- 
portation. We  have  already  seen  that  formerly  so  strict  was 
23  353 


§  93  EIGHTS  AND  DUTIES  OF  COMMON  CAREIEE. 

tlie  rule  that  tlie  carrier  was  liable  only  in  respect  to  the  reward 
adhered  to,  that  he  was  not  held  liable  for  the  loss  of  the  bag- 
gage of  the  passenger  unless  a  distinct  price  was  paid  for  it.  The 
law  is  now  very  properly  altered,  as  a  reasonable  amount  of  bag- 
gage, by  custom  or  the  courtesy  of  the  carrier,  is  considered  as  in- 
cluded in  the  fare  for  the  person;  but  courts  ought  not  to  per- 
mit this  gratuity  or  custom  to  be  abused,  and  under  pretense  of 
baggage  to  include  articles  not  within  the  sense  or  meaning  of 
the  term,  or  within  the  object  or  intent  of  the  indulgence  of  the 
carrier,  and  thereby  defraud  him  of  his  just  compensation,  and 
subject  him  to  unknown  and  illimitable  hazards.  If  the  amount 
of  money  in  the  trunk  in  this  case  is  not  fairly  included  under 
the  term  baggage,  as  used  in  the  connection  we  here  find  it  (and 
I  cannot  think  it  is),  then  the  conduct  of  the  agent  was  a  virtual 
conceabnent  of  that  sum ;  his  representation  of  his  trunk  and  the 
contents  as  baggage,  was  not  a  fair  one;  and  was  calculated  to 
deceive  the  captain ;  and  it  would  be  a  violation  of  first  principles 
to  permit  the  plaintiffs  to  recover.  The  case  of  Miles  v.  Cattle 
et  al.,  19  Com.  L.  R.  219,  in  some  respects  resembles  this  case. 
The  plaintiff  was  going  to  L.,  and  took  a  seat  in  a  public  con- 
veyance. He  had  with  him  a  bag  labeled  "T.  Miles,  traveler," 
containing  clothes  worth  about  fifteen  pounds.  Before  he  started, 
G.  delivered  hira  a  parcel  containing  a  fifty-pound  bank  note, 
addressed  to  an  attorney  in  L.,  which  the  plaintiff  was  desired 
to  book  at  the  defendants'  office,  and  to  be  forwarded  by  the  de- 
fendants to  L.  The  plaintiff,  instead  of  doing  so,  put  the  parcel 
in  his  own  bag,  intending  to  convey  it  to  L.  himself.  If  the 
parcel  had  been  sent  by  the  defendants,  it  would  have  cost  four 
shillings  and  six  pence.  The  bag  and  contents  were  lost.  The 
verdict  was  found  for  the  fifteen  pounds,  with  leave  to  apply  to 
increase  it,  on  the  facts  in  the  case,  by  adding  the  fifty  pounds. 
The  court  denied  the  application,  principally  upon  the  ground 
that  the  plaintiff  had  no  interest  in  the  fifty  pounds.  But  it  was 
conceded  by  the  court  that  the  owner  could  not  recover  on  the 
facts.  Tindale,  J.,  says,  in  violation  of  his  trust  the  plaintiff 
thought  proper  not  to  deliver  the  parcel  to  the  defendants,  but 
to  deposit  it  in  his  own  bag ;  thereby  depriving  the  owner  of  any 
remedy  he  might  have  had  against  the  defendants,  and  the  de- 
fendants of  the  sum  they  would  otherwise  have  earned  for  the 
carriage  of  the  parcel.  In  this  case  the  president  of  the  bank 
directed  Phillips  to  commit  the  packages  directed  to  the  captain, 
and  had  he  followed  such  directions,  the  captain  would  have 
been  enabled  to  charge  a  reward  for  the  carriage  of  the  same, 
and  the  captain,  or  the  defendants,  would  have  been  responsible 
for  its  safety.    His  omission  to  follow  the  directions  was  a  viola- 

354 


OKANGE    CO.    BANK   v.   BEOVfN.  §  93 

tion  of  liis  trust,  for  which  the  defendants  are  not  accountable. 

It  was  decided  in  Sewall  v.  Allen  et  al.,  in  the  court  of  errors, 
6  Wend.  335,  that  the  Dutchess  and  Orange  Steamboat  Com- 
pany, and  the  members  thereof,  were  not  liable  for  the  loss  of 
packages  of  bank  bills  intrusted  to  the  captain  of  the  boat,  on 
the  ground  that  the  carriage  of  bank  bills  was  not  within  the 
ordinary  business  of  the  company,  and  so  far  as  the  usage  ex- 
tended, it  was  a  personal  trust  committed  to  the  captain,  who 
alone  received  the  compensation,  or  in  other  words,  the  com- 
pany were  neither  by  their  charter  or  usage  under  it,  common 
carriers  of  bank  bills.  From  the  facts  appearing  in  that  case, 
I  presume  the  principle  here  decided  by  the  highest  judicial 
tribunal  in  the  state,  would  be  equally  applicable  to  this  com- 
pany, though  from  the  direction  the  cause  took  upon  the  trial, 
facts  sufficient  do  not  appear  to  raise  the  question.  If  so,  it 
seems  to  me  impossible  to  maintain  the  proposition  that  the 
defendants  would  be  holden  responsible  for  the  loss  of  an  article 
in  the  trunk  of  a  passenger,  which  in  no  sense  of  the  term  can 
be  considered  a  part  of  the  baggage  of  the  passenger,  and  for 
the  transportation  of  which  no  compensation  is  received  by  the 
company,  when  confessedly  they  would  not  be  accountable  for 
the  same  article,  if  it  had  been  committed  directly  to  the  care  of 
the  captain,  and  a  reasonable  reward  paid  him  for  transportation. 
If  it  is  said  the  difference  between  the  cases  consists  in  this,  that 
in  the  one  case  it  is  a  part  of  the  baggage  of  the  passenger,  the 
carrying  of  which  is  within  the  ordinary  business  of  the  com- 
pany, and  for  which  they  receive  the  reward,  and  in  the  other, 
it  is  a  private  transaction  between  the  owner  and  the  captain; 
the  answer  I  think  is,  that  putting  the  article  in  the  trunk  does 
not  make  it  baggage.  If  it  is  included  within  that  term,  it  is  as 
much  baggage  when  distinctly  committed  to  the  care  of  the 
captain  as  when  in  the  trunk ;  the  place  in  which  it  is  cannot,  in 
this  instance,  at  least,  vary  the  character  of  the  article  or  the 
transaction ;  the  object  is  the  transportation  of  the  money,  with- 
out reference  to  a  connection  with  the  person  of  the  passenger. 

Having  come  to  the  conclusion  upon  what  I  view  as  the  merits 
and  principle  of  the  case,  that  the  plaintiffs  cannot  recover,  it  is 
unimportant  to  examine  any  other  question  discussed  upon  the 
argument. 

Motion  for  new  trial  denied. 


355 


§  94  EIGHTS  AND  DUTIES  OF  COMMON  CAEEIEE. 

4.  94.     EVANS  V.  FITCHBURG  RAILROAD  CO., 

Ill  Mass.  142;  15  Am.  B.  19.     1872. 

Tort  to  recover  for  injuries  to  plaintiff's  horse.  He  had 
delivered  two  horses  to  defendant,  and  tied  them  in  the  car. 
He  offered  to  prove  that  one  had  been  injured  by  kicks  from 
the  other,  and  that  both  had  previously  been  kind.  The  na- 
ture of  the  charge  and  refusal  to  charge  by  the  judge  below 
are  sufficiently  indicated  in  the  opinion.    Judgment  for  plaintiff. 

Ames,  J.  According  to  the  established  rule  as  to  the  liability 
of  a  common  carrier,  he  is  understood  to  guarantee  that  (with 
the  well-known  exception  of  the  act  of  God  and  of  public  ene- 
mies) the  goods  entrusted  to  him  shall  seasonably  reach  their 
destination,  and  that  they  shall  receive  no  injury  from  the  man- 
ner in  which  their  transportation  is  accomplished.  But  he  is 
not,  necessarily  and  under  all  circumstances,  responsible  for  the 
condition  in  which  they  may  be  found  upon  their  arrival.  The 
ordinary  and  natural  decay  of  fruit,  vegetables  and  other  per- 
ishable articles;  the  fermentation,  evaporation  or  unavoidable 
leakage  of  liquids;  the  spontaneous  combustion  of  some  kinds 
of  goods;  are  matters  to  which  the  implied  obligation  of  the 
carrier,  as  an  insurer,  does  not  extend.  Story  on  Bailments, 
§§  492  a,  576.  He  is  liable  for  all  accidents  and  mismanage- 
ment incident  to  the  transportation  and  to  the  means  and  ap- 
pliances by  which  it  is  effected;  but  not  for  injuries  produced 
by,  or  resulting  from,  the  inherent  defects  or  essential  qualities 
of  the  articles  which  he  undertakes  to  transport.  The  extent 
of  his  duty  in  this  respect  is  to  take  all  reasonable  care  and  uge 
all  proper  precautions  to  prevent  such  injuries,  or  to  diminish 
their  effect,  as  far  as  he  can;  but  his  liability,  in  such  cases,  is 
by  no  means  that  of  an  insurer. 

Upon  receiving  these  horses  for  transportation,  without  any 
special  contract  limiting  their  liability,  the  defendants  incurred 
the  general  obligation  of  common  carriers.  They  thereby  became 
responsible  for  the  safe  treatment  of  the  animals,  from  the  mo- 
ment they  received  them,  until  the  carriages  in  which  they  were 
conveyed  were  unloaded.  Moffat  v.  Great  Western  Railway  Co., 
15  Law  T.  (N.  S.)  630.  They  would  be  unconditionally  liable 
for  all  injuries  occasioned  by  the  improper  construction  or  un- 
safe condition  of  the  carriage  in  which  the  horses  were  con- 
veyed, or  by  its  improper  position  in  the  train,  or  by  the  want 
of  reasonable  equipment,  or  by  any  mismanagement,  or  want 
of  due  care,  or  by  any  other  accident   (not  within  the  well- 

356 


EVANS  V.  FITCHBUEG  EAILEOAD  CO.  5  94 

known  exception)  affecting  either  the  train  generally  or  that  par- 
ticular carriage.  But  the  transportation  of  horses  and  other 
domestic  animals  is  not  subject  to  precisely  the  same  rules  as 
that  of  packages  and  inanimate  chattels.  Living  animals  have 
excitabilities  and  volitions  of  their  own  which  greatly  increase 
the  risks  and  difRculties  of  management.  They  are  carried  in 
a  mode  entirely  opposed  to  their  instincts  and  habits;  they  may 
be  made  uncontrollable  by  fright,  or  notwithstanding  every  pre- 
caution, may  destroy  themselves  in  attempting  to  break  loose, 
or  may  kill  each  other.  If  the  injury  in  this  case  was  produced 
by  the  fright,  restiveness,  or  viciousness  of  the  animals,  and  if 
the  defendants  exercised  all  proper  care  and  foresight  to  pre- 
vent it,  it  would  be  unreasonable  to  hold  them  responsible  for 
the  loss.  Clarke  v.  Rochester  &  Syracuse  Railroad  Co.,  14  N. 
Y.  570,  67  Am.  Dec.  205.  Thus  it  has  been  held  that  if  horses 
or  other  animals  are  transported  by  water,  and  in  consequence 
of  a  storm  they  break  down  the  partition  between  them,  and  by 
kicking  each  other  some  of  them  are  killed,  the  carrier  will  not 
be  held  responsible.  Laurence  v.  Aberdein,  5  B.  &  Aid.  107; 
Story  on  Bailments,  §  576 ;  Angell  on  Carriers,  214  a.  The  car- 
rier of  cattle  is  not  responsible  for  injuries  resulting  from  their 
viciousness  of  disposition,  and  the  question  what  was  the  cause 
of  the  injury  is  one  of  fact  for  the  jury.  Hall  v.  Renfro,  3 
Mete.  (Ky.)  51.  And  in  a  New  York  case,  Conger  v.  Hudson 
River  Railroad  Co.,  6  Duer,  375,  Mr.  Justice  Woodruff  says, 
in  behalf  of  the  court:  "We  are  not  able  to  perceive  any  rea- 
son upon  which  the  shrinkage  of  the  plaintiff's  cattle,  their  dis- 
position to  become  restive,  and  their  trampling  upon  each  other 
when  some  of  them  lie  down  from  fatigue,  is  not  to  be  deemed 
an  injury  arising  from  the  nature  and  inherent  character  of  the 
property  carried,  as  truly  as  if  the  property  had  been  of  any  de- 
scription of  perishable  goods." 

It  appears  to  us,  therefore,  that  the  first  instruction  which  the 
defendants  requested  the  court  to  give  should  have  been  given. 
If  the  jury  found  that  the  defendants  provided  a  suitable  car, 
and  took  all  proper  and  reasonable  precautions  to  prevent  the 
occurrence  of  such  an  accident,  and  that  the  damage  was  caused 
by  the  kicking  of  one  horse  by  another,  the  defendants  were  en- 
titled to  a  verdict.  That  is  to  say,  they  might  be  held  to  great 
vigilance,  foresight  and  care ;  but  they  were  not  absolutely  liable 
as  insurers  against  injuries  of  that  kind.  As  there  was  evidence 
also  tending  to  show  that  the  halter  was  attached  by  the  plaintiff 
to  the  jaw  of  one  of  the  horses  in  a  manner  which  might  cause 
or  increase  restiveness  and  bad  temper,  and  also  evidence  that 
their  shoes  were  not  taken  off,  the  defendants  were  entitled  to 

357 


§§  94,  95     RIGHTS  AND  DUTIES  OF  COMMON  CAEEIEE. 

the  instruction  that  if  the  injuries  were  caused  by  the  fault  or 
neglect  of  the  plaintiff  in  these  particulars,  he  could  not  recover. 
This  court  has  recently  decided  that  for  unavoidable  injuries 
done  by  cattle  to  themselves  or  each  other,  in  their  passage,  the 
common  carrier  is  not  liable.  Smith  v.  New  Haven  &  North- 
ampton Railroad  Co.,  12  Allen,  531.  This  is  another  mode  of 
saying  that  a  railroad  corporation,  in  undertaking  the  transpor- 
tation of  cattle,  does  not  insure  their  safety  against  injuries 
occasioned  by  their  viciousness  and  unruly  conduct.  Kendall 
v.  London  &  Southwestern  Railroad  Co.,  L.  R.  7  Ex.  373.  The 
jury  should  therefore  have  been  instructed  that  if  the  injury 
happened  in  that  way,  and  if  the  defendants  exercised  proper 
care  and  foresight  in  placing  and  securing  the  horses  while  under 
their  charge,  they  are  not  to  be  held  liable  in  this  action.  Upon 
this  point  the  burden  of  proof  may  be  upon  the  defendants,  but 
they  should  have  been  permitted  to  go  to  the  jury  upon  the  ques- 
tion whether  there  had  been  reasonable  care  on  their  part. 

It  appears  to  us  also  that  the  instruction  actually  given  was  not 
a  full  equivalent  for  that  which  was  requested  and  which,  as  we 
have  seen,  should  have  been  given.  It  was  not  necessary  to  the 
defense  to  show  that  the  injury  was  caused  in  "an  outburst  of 
viciousness."  The  proposition  should  have  been  stated  much 
more  generally,  and  the  jury  should  have  been  told  that  if  from 
fright,  bad  temper,  viciousness,  or  any  other  cause  without  fault 
on  the  part  of  the  defendants,  the  horses  became  refractory  and 
unruly,  and  the  kicking  and  injury  were  occasioned  in  that  man- 
ner, it  was  an  unavoidable  accident,  for  which  the  defendants 
were  not  liable. 

Exceptions  sustained. 


95.  KANSAS  PACIFIC  RAILWAY  CO.  V.  NICHOLS, 

9  Kan.  235;  12  Am.  E.  494.     1872. 

Action  for  damages  for  cattle  lost  through  negligence  of  the 
carrier.    Judgment  for  plaintiff. 

Valentine,  J.  (After  deciding  an  unimportant  point  of  prac- 
tice.) The  main  question  in  this  case  is,  whether  the  railway 
company,  when  it  took  the  cattle  of  the  plaintiff  below  for  the 
purpose  of  transporting  them  over  its  road,  assumed  the  re- 
sponsibilities  of  a  common  carrier  or  not.  We  think  it  did. 
This  question  has  already  been  decided  in  this  court  in  the  case 
of  The  Kansas  P.  Railway  Co.  v.  Reynolds,  8  Kan.  623.  In  the 
case  of  Kimball  v.  The  Rutland  &  Burlington  R.  R.  Co.,  26  Vt. 

358 


KAN.  PAC.  EY.  CO.  v.  NICHOLS.  §  95 

247,  62  Am,  D.  567,  et  seq.,  the  court  decided  that  "a  railway- 
company  that  transport  cattle  and  live  stock  for  hire,  for  such 
persons  as  choose  to  employ  them,  thereby  assume  and  take  upon 
themselves  the  relation  of  common  carriers,  and  v/ith  the  re- 
lation the  duties  and  obligations  which  grow  out  of  it ;  and  they 
are  none  the  less  common  carriers  from  the  fact  that  the  trans- 
portation of  cattle  is  not  their  principal  business  or  employ- 
ment." See  also  Welsh  v.  Pittsburg,  Ft.  Wayne  &  C.  R.  R.  Co., 
10  Ohio  St.  65,  75  Am.  D.  490.  In  the  case  of  the  Great  West- 
ern Railway  Co.  v.  Hawkins,  18  Mich.  427,  433,  the  supreme 
court  of  Michigan  use  the  following  language:  "The  company 
in  this  case  must  be  regarded  as  common  carriers,  and  liable 
as  such,  except  so  far  as  that  liability  was  qualified  by  the  special 
contract."  The  special  contract  just  mentioned  was  a  contract 
to  transport  nineteen  horses  from  Paris,  Canada,  to  Detroit, 
Michigan,  and  there  is  nothing  in  the  contract  or  in  the  report 
of  the  case  that  tends  to  show  that  the  company  held  themselves 
out  as  common  carriers  of  live  stock,  or  that  they  anywhere 
agreed  or  admitted  that  they  were  such  carriers,  and  they  car- 
ried these  horses  under  a  special  contract.  See  also  the  authori- 
ties cited  in  the  brief  of  defendants  in  error,  and  2  Redf.  on 
Railways  (4th  ed.),  144,  note  2,  and  cases  there  cited;  Wilson 
V.  Hamilton,  4  Ohio  St.  738;  Sager  v.  Portsmouth  R.  R.  Co.,  31 
Me.  228,  50  Am.  D.  659 ;  Clarke  v.  Rochester  &  Syracuse  R.  R. 
Co.,  14  N.  Y.  570,  67  Am.  D.  205 ;  North  Mo.  R.  R.  Co.  v.  Akers, 
4  Kan.  453,  96  Am.  D.  183 ;  Keeney  v.  The  Grand  Trunk  Rail- 
way Co.,  59  Barb.  104;  Welsh  v.  Pittsburgh,  Ft.  Wayne  &  C.  R. 
R.  Co.,  10  Ohio  St.  65,  75  Am.  D.  490.  It  is  claimed  that  a 
different  doctrine  has  recently  been  held  in  Michigan.  Mich, 
So.  &  North  Ind.  R.  R.  Co.  v.  McDonough,  21  Mich.  165,  4  Am. 
R.  466.  This  is  certainly  true  with  respect  to  the  railroad  then 
under  consideration  by  the  court ;  but  whether  it  is  true  with 
regard  to  all  railroads  in  the  state  of  Michigan  is  not  so  certain. 
See  pages  189,  198  and  199  of  the  opinion,  and  the  comments 
of  the  court  on  the  provisions  of  the  charter  of  the  Michigan 
Southern  Railroad  Co.,  and  the  act  consolidating  it  with  the 
Northern  Indiana  Railroad  Company.  But  if  this  decision  does 
apply  to  all  the  railroads  of  Michigan  as  well  as  to  the  Michigan 
Southern  &  Northern  Indiana  Railroad  Company,  under  its 
peculiar  charter,  does  it  in  any  manner  indicate  what  the  law 
is  in  Kansas?  We  think  not,  or  but  very  little  at  most.  In 
Michigan,  since  April,  1870,  railroads  have  not  been  public 
purposes,  or  public  uses,  in  the  sense  that  they  are  such  in  the 
other  states  of  the  Union.  In  that  state  they  are  purely  and 
strictly  private  purposes  or  uses.     People  v.  Salem,  20  Mich. 

359 


§  95  EIGHTS  AND  DUTIES  OF  COMMON  CAERIER. 

452;  4  Am.  Rep.  400.  The  supreme  court  of  that  state  say, 
that,  "they  (railroad  companies)  are  public  agents  in  the  same 
sense  that  the  proprietors  of  many  other  kinds  of  private  busi- 
ness are,  and  not  in  any  other  or  different  sense."  "Our  policy 
in  that  respect, ' '  say  the  court,  ' '  has  changed ;  railroads  are  no 
longer  public  works,  but  are  private  property."  Eailroads  are 
private,  according  to  that  decision,  in  the  same  sense  that  the 
different  kinds  of  business  of  hackmen,  draymen,  proprietors  of 
stage  coaches,  merchants,  newspaper  proprietors,  physicians, 
manufacturers,  mechanics,  hotel-keepers,  millers,  etc.,  are  pri- 
vate. Railroads  in  IMichigan  seem  from  that  decision  to  be  such 
private  corporations  as  are  described  in  the  case  of  Leavenworth 
Co.  V.  Miller,  7  Kan.  534,  535.  If  they  are  such  private  corpora- 
tions as  there  described,  of  course  they  have  a  right  to  be  com- 
mon carriers  of  just  such  property  as  they  choose,  no  more  and 
no  less.  This  is  not  so  in  Kansas.  The  railroads  of  Kansas  are 
organized  upon  a  different  basis.  In  Kansas  they  are  endowed 
with  a  kind  of  quasi  public  as  well  as  private  character.  In 
Kansas  they  are  so  far  public  that  the  sovereign  power  of  emi- 
nent domain  may  be  exercised  for  their  benefit,  and  they  are  so 
far  public  that  other  public  aid  may  be  extended  to  them.  It 
is  believed  that  no  railroad  has  yet  been  built  in  Kansas  that  has 
not  been  aided  both  by  the  exercise  of  the  power  of  eminent  do- 
main, and  by  other  public  aid,  such  as  lands  and  county  or  muni- 
cipal bonds.  Railroads  are  public  purposes  in  no  sense  except 
in  the  sense  of  being  common  carriers  of  freight  and  passengers. 
It  is  true  that  there  are  incidental  public  benefits  arising  from 
the  creation  and  operation  of  railroads,  such  as  the  increase  in 
the  value  of  property  along  their  routes,  the  increase  of  the 
public  revenues,  etc.,  but  these  are  only  incidental  benefits,  and 
are  not  at  all  what  make  railroads  public  purposes.  And  this 
public  character  of  railroads  is  stamped  upon  them  at  their  very 
creation.  It  is  stamped  upon  them  by.  the  sovereign  power  where 
it  authorizes  their  coming  into  existence ;  for  otherwise  they  could 
receive  no  public  aid  until  the  roads  should  be  constructed  and 
in  operation,  and  until  the  roads  should  become  public  purposes 
by  virtue  of  becoming  common  carriers  of  freight  or  passengers. 
And  if  they  were  created  absolutely  private  corporations  they 
could  become  common  carriers  only  by  holding  themselves  out 
as  such,  and  by  actually  carrying  freight  or  passengers.  We 
suppose  it  will  not  be  contended  that  any  kind  of  public 
aid  could  be  extended  to  a  purely  private  corporation.  If  a 
railroad  company  is  created  as  a  private  carrier,  and  not  as  a 
public  or  common  carrier,  we  suppose  that  no  one  will  contend 
that  the  sovereign  power  of  eminent  domain  could  be  exercised 

360 


KAN.  PAC.  KY.  CO.  v.  NICHOLS.  §  95 

for  its  benefit  in  its  construction,  or  that  any  public  aid  of  any 
kind  whatever  could  be  extended  to  it.  That  railroads  are  created 
common  carriers  of  some  kind,  we  believe,  is  the  universal  doc- 
trine of  all  the  courts.  The  main  question  is  always,  whether 
they  are  common  carriers  of  the  particular  thing  then  under 
consideration?  The  question  in  this  case  is,  whether  they  are 
common  carriers  of  cattle  ?  So  far  as  our  statutes  are  concerned 
no  distinction  is  made  between  the  carrying  of  cattle  and  that  of 
any  other  kind  of  property.  Under  our  statutes  a  railroad  may 
as  well  be  a  common  carrier  of  cattle  as  of  goods,  wares  and 
merchandise,  or  of  any  other  kind  of  property.  Now,  as  no  dis- 
tinction has  been  made  by  statute  between  the  carrying  of 
the  different  kinds  of  property,  we  would  infer  that  railroads 
were  created  for  the  purpose  of  being  common  carriers  of  all 
kinds  of  property  which  the  wants  or  needs  of  the  public  require 
to  be  carried,  and  which  can  be  carried  by  the  railroads;  and 
particularly  we  would  infer  that  railroads  were  created  for  the 
purpose  of  being  common  carriers  of  cattle.  As  Kansas,  and 
all  the  surrounding  states  and  territories,  with  their  boundless 
prairies  and  nutritious  grasses,  are  destined  to  be  great  stock- 
growing  countries,  it  can  scarcely  be  supposed  that  the  legisla- 
ture, in  providing  common  carriers  for  the  property  of  the 
public,  should  have  omitted  to  provide  for  one  of  the  most  im- 
portant kinds  of  property,  a  vast  source  of  unbounded  wealth. 
We  have  no  navigable  streams  within  the  boundaries  of  Kansas 
upon  which  to  transport  cattle,  and  hence  they  must  be  trans- 
ported by  railroad,  if  transported  by  any  means  except  by  driv- 
ing them  on  foot. 

It  is  claimed,  however,  that  "the  transportation  of  cattle  and 
live  stock  by  common  carriers  by  land  was  unknown  to  the  com- 
mon law. ' '  Suppose  it  was ;  what  does  that  prove  ?  The  trans- 
portation of  thousands  of  other  kinds  of  property,  either  by  land 
or  water,  was  unknown  to  the  common  law,  and  yet  such  kinds 
of  property  are  now  carried  by  common  carriers,  and  by  rail- 
roads every  day.  We  get  our  common  law  from  England.  It 
was  brought  over  by  our  ancestors  at  the  earliest  settlement  of 
this  country.  It  dates  back  to  the  fourth  year  of  the  reign  of 
James  the  First,  or  1607,  when  the  first  English  settlement  was 
founded  in  this  country  at  Jamestown,  Virginia.  The  body  of 
the  laws  of  England,  as  they  then  existed,  now  constitute  our 
common  law.  It  is  so  fixed  by  statute  in  this  state  (Comp.  Laws, 
678;  Gf^n.  Stat.  1127,  §  3),  and  is  generally  so  fixed  by  statute 
or  by  judicial  decisions  in  the  other  states.  The  reason  why 
cattle  and  live  stock  were  not  transported  hy  land  by  common 
carriers  at  common  law,  was  because  no  common  carrier,  at  the 

361 


§  95  EIGHTS  AND  DUTIES  OF  COMMON  CAEEIEE. 

time  our  common  law  was  formed,  had  any  convenient  means 
for  such  transportation.     Among  the  other  kinds  of  property 
not  transported  by  common  carriers,  either  by  land  or  water, 
at  the  time  our  common  law  was  formed,  are  the  following: 
Reapers,  mowers,  wheat  drills,  corn  planters,  cultivators,  thresh- 
ing machines,  corn  shellers,  gypsum,  guano,  Indian  corn,  pota- 
toes, tobacco,  stoves,  steam  engines,  sewing  machines,  washing 
machines,  pianos,  reed  organs,  fire  and  burglar-proof  safes,  etc. ; 
and  yet  no  one  would  now  contend  that  railroads  are  not  com- 
mon carriers  of  these  kinds  of  articles.     At  common  law  the 
character  of  the  carrier  was  never  determined  by  the  kind  of 
property  that  he  carried.    He  might  have  been  a  private  or  spe- 
cial carrier  of  goods,  wares  and  merchandise,  or  of  any  other 
kind  of  property,  or  he  might  have  been  a  public  or  common  car- 
rier of  cattle,  live  stock  or  any  other  kind  of  property,  just  as 
he  chose.     All  personal  property  was  subject  to  be  carried  by 
a  common  carrier,  and  no    personal    property    was    exempt. 
"Whether  a  person  was  a  common  carrier  depended  wholly  upon 
whether  he  held  himself  out  to  the  world  as  such,  and  not  upon 
the  kind  of  property  that  he  carried.     A  common  carrier  was 
such  as  undertook,  ''generally,  and  not  as  a  casual  occupation, 
and  for  all  people  indifferently,  to  convey  goods  and  deliver 
them  at  a  place  appointed,  for  hire,  as  a  business,  and  with  or 
without  a  special  agreement  as  to  price."    2  Kent's  Com.  598. 
And  he  could  hold  himself  out  as  a  common  carrier  by  engag- 
ing in  the  business  generally,  or  by  announcing  or  proclaiming 
it  to  the  world  by  the  issuing  of  cards,  circulars,  advertisements, 
etc.,  or  by  any  other  means  that  would  let  the  public  know  that 
he  intended  to  be  a  common  or  general  carrier  for  the  public. 
Eailroads  hold  themselves  out  as  common  carriers  by  an  act 
irrevocable  on  their  part  in  their  very  creation  and  organiza- 
tion.    The  very  nature  of  their  business  is  such  that  by  en- 
gaging in  it,  or  offering  to  engage  in  it,  they  hold  themselves 
out  as  common  carriers.     But  let  us  return  to  the  point  more 
especially  under  consideration.    At  common  law  no  person  was 
a  common  carrier  of  any  article  unless  he  chose  to  be,  and  un- 
less he  held  himself  out  as  such;  and  he  was  a  common  carrier 
of  just  such  articles  as  he  chose  to  be,  and  no  others.    If  he  held 
himself  out  as  a  common  carrier  of  silks  and  laces,  the  common 
law  would  not  compel  him  to  be  a  common  carrier  of  agricul- 
tural implements,  such  as  plows,  harrows,  etc.;  if  he  held  him- 
self out  as  a  common  carrier  of  confectionery  and  spicfe,  the 
common  law  would  not  compel  him  to  be  a  common  carrier  of 
bacon,  lard,  and  molasses.     Tunnel  v.  Pettijohn,  2  Harrington 
(Del.),  48.    And  it  seems  to  us  clear  beyond  all  doubt,  that  if 

362 


KAN.  PAC.  EY.  CO.  v.  NICHOLS.  §  95 

any  person  had  in  England,  prior  to  the  year  1607,  held  himself 
out  as  a  common  carrier  of  cattle  and  live  stock  by  land,  the 
common  law  would  have  made  him  such.  If  so,  where  is  the 
valid  distinction  that  is  attempted  to  be  made  between  the  carry- 
ing of  live  stock  and  the  carrying  of  any  other  kind  of  personal 
property?  The  common  law  never  declared  that  certain  kinds 
of  property  only  could  be  carried  by  common  carriers,  but  it 
permitted  all  kinds  of  personal  property  to  be  so  carried.  At 
common  law  any  person  could  be  a  common  carrier  of  all  kinds, 
or  any  kind,  and  of  just  such  kinds  of  personal  property  as  he 
chose,  no  more,  no  less.  Of  course,  it  is  well  known  that  at  the  time 
when  our  common  law  had  its  origin,  that  is,  prior  to  the  year 
1607,  railroads  had  no  existence.  But  when  they  came  into  ex- 
istence it  must  be  admitted  that  they  would  be  governed  by  the 
same  rules,  so  far  as  applicable,  which  govern  other  carriers  of 
property.  Therefore  it  must  be  admitted  :;hat  railroads  might 
be  created  for  the  purpose  of  carrying  one  kind  of  property 
only,  or  for  carrying  many  kinds,  or  for  carrying  all  kinds  of 
property  which  can  be  carried  by  railroads,  including  cattle, 
live  stock,  etc.  In  this  state  it  must  be  presumed  that  they  were 
created  for  the  purpose  of  carrying  all  kinds  of  personal  prop- 
erty. It  can  hardly  be  supposed  that  they  were  created  simply 
for  the  purpose  of  being  carriers  of  such  articles  only  as  were 
carried  by  common  carriers  under  the  common  law  prior  to  the 
year  1607 ;  for  if  such  were  the  case  they  would  be  carriers  of 
but  very  few  of  the  innumerable  articles  that  are  now  actually 
carried  by  railroad  companies.  And  it  can  hardly  be  supposed 
that  they  were  created  for  the  mere  purpose  of  taking  the  place 
of  pack-horses,  or  clumsy  wagons,  often  drawn  by  oxen,  or  such 
other  primitive  means  of  carriage  and  transportation  as  were 
used  in  England  prior  to  that  year.  Railroads  are  undoubtedly 
created  for  the  purpose  of  carrying  all  kinds  of  property  which 
the  common  law  would  have  permitted  to  be  carried  by  common 
carriers  in  any  mode,  either  by  land  or  water,  which  probably 
includes  all  kinds  of  personal  property.  Our  decision,  then, 
upon  this  question  is,  that  whenever  a  railroad  company  receive 
cattle  or  live  stock  to  be  transported  over  their  road  from  one 
place  to  another,  such  company  assume  all  the  responsibilities 
of  a  common  carrier,  except  so  far  as  such  responsibilities  may 
be  modified  by  special  contract. 

(The  court  then  considered  an  instruction  as  to  the  damages, 
and  reversed  the  judgment  for  error  therein.) 


363 


96  EIGHTS  AND  DUTIES  OF  COMMON  CAEEIER. 


96.  In  Michigan  Southern  and  Northern  Indiana  Railroad 
Co.  V.  McDonough,  21  Mich.  165,  4  Am.  R.  466  (1870),  it  was 
said  by  Christiancy,  J.,  in  delivering  the  opinion  of  the  court : 

"As  the  plaintiffs  did  not  seek  to  prove  an  express  contract  in 
support  of  their  declaration,  it  devolved  upon  them  to  prove  the 
delivery  of  the  property  to  the  company  and  their  acceptance 
of  it,  under  circumstances  from  which  the  law  implies  the  con- 
tract declared  upon;  and  this  could  only  be  done  by  showing 
that  the  company  received  the  property  as  common  carriers,  that 
is  to  say,  under  circumstances  which  made  it  their  duty  to  take 
care  of  the  property  in  its  transportation  and  delivery,  and  to 
protect  it  from  all  injury  and  loss  not  occasioned  by  the  act  of 
God  or  of  the  public  enemy — or  at  least,  from  all  loss  or  injury 
which,  in  this  mode  of  transporting  this  kind  of  property, 
might  be  avoided  by  human  agency.  It  is  unnecessary  to  dis- 
cuss the  question  of  proof  upon  any  other  feature  of  the  con- 
tract alleged,  since,  if  proved  in  all  other  respects,  but  not  in 
this,  the  contract  alleged,  being  an  entire  thing,  is  not  proved. 

For  the  purpose  of  this  case  it  may  be  assumed  that  this  com- 
pany, by  their  charter  and  act  of  consolidation,  are  required  to 
take  upon  themselves  the  business  of  common  carriers,  and  to 
transport,  as  such,  all  such  property  tendered  to  them  for  that 
purpose  as  was  usually  transported  by  railroads,  as  common  car- 
riers, at  the  date  of  the  charter  of  the  Michigan  Southern 
Railroad  Company  in  1846,  and  any  other  kind  of  property 
which,  in  the  progress  of  invention  and  business,  might  be  ten- 
dered for  such  carriage,  which  should  not,  from  its  nature,  im- 
pose risks  of  a  different  character,  or  require  an  essentially  dif- 
ferent mode  of  managing  their  road,  or  the  incurring  of  extra 
expenses  on  account  of  the  different  character  of  such  new  kinds 
of  property. 

But  the  transportation  of  cattle  and  live  stock  by  common  car- 
riers by  land  was  unknown  to  the  common  law,  when  the  duties 
and  responsibilities  of  common  carriers  were  fixed,  making  them 
insurers  against  all  losses  and  injuries  not  arising  from  the  act 
of  God  or  of  the  public  enemies.  These  responsibilities  and 
duties  ivere  fixed  with  reference  to  kinds  of  property  involving, 
in  their  transportation,  much  fewer  risks  and  of  quite  a  different 
kind,  from  those  which  are  incident  to  the  transportation  of 
live  stock  by  railroad.  Animals  have  wants  of  their  own  to  be 
supplied ;  and  this  is  a  mode  of  conveyance  at  which,  from  their 
nature  and  habits,  most  animals  instinctively  revolt;  and  cat- 
tle especially,  crowded  in  a  dense  mass,  frightened  by  the  noise 
of  the  engine,  the  rattling,  jolting,  and  frequent  concussions  of 

364 


HINKLE    V.    SOUTHERN    RAILWAY    CO.         §§  9G,  97 

the  cars,  in  their  frenzy  injure  each  other  by  trampling,  plung- 
ing, goring  or  throwing  down;  and  frequently,  on  long  routes, 
their  strength  exhausted  by  hunger  and  thirst,  fatigue  and 
fright,  the  weak  easily  fall  and  are  trampled  upon,  and  unless 
helped  up,  must  soon  die.  Hogs  also  swelter  and  perish.  See 
per  Parke,  B.,  in  Carr  v.  Lancashire  &  York  Railway  Co.,  7 
Exch.  712,  713;  Denio,  J.,  in  Clarke  v.  Rochester  &  S.  Railway 
Co.,  14  N.  Y.  573,  67  Am.  D.  205.  It  is  a  mode  of  transportation 
which,  but  for  its  necessity,  would  be  gross  cruelty  and  indict- 
able as  such.  The  risk  may  be  greatly  lessened  by  care  and 
vigilance,  by  feeding  and  watering  at  proper  intervals,  by  get- 
ting up  those  that  are  down,  and  otherwise.  But  this  imposes 
a  degree  of  care  and  an  amount  of  labor  so  different  from  what 
is  required  in  reference  to  other  kinds  of  property,  that  I  do  not 
think  this  kind  of  property  falls  within  the  reasons  upon  which 
the  common  law  liability  of  common  carriers  was  fixed.  .  .  . 
Unless,  therefore,  there  be  something  in  the  defendant's 
charter,  or  the  act  of  consolidation,  or  some  other  statute  ap- 
plicable to  the  case — a  question  I  shall  hereafter  consider — the 
company  were  not  bound  to  receive  or  transport  cattle  or  hogs, 
as  common  carriers,  but  they  might  legally  refuse  to  carry 
them  in  that  or  any  other  capacity." 


^     97.     HINKLE  V.  SOUTHERN  RAILWAY  CO., 

126  N.  C.  932;  36  8.  E.  B.  348;  78  Am.  St.  B.  685.     1900. 

Action  to  recover  damages  due  to  delay  in  shipment  of  a  car- 
load of  cattle.  The  cattle  were  injured,  had  to  be  fed  en  route 
and  missed  the  Saturday  market.  The  contract  on  the  bill  of 
lading  provided  against  liability  for  all  injuries  not  caused  by 
the  fraud  or  gross  negligence  of  the  railroad  company,  and 
required  the  shipper  to  give  written  notice  of  any  loss.  Judg- 
ment for  plaintiff  in  the  sum  of  $225.00. 

Douglas,  J.  This  case  was  submitted  to  us  on  printed  briefs 
for  the  plaintiffs,  but  was  argued  in  behalf  of  the  defendant 
both  orally  and  by  brief.  It  is  perhaps  proper  to  say  that  almost 
the  entire  brief  of  the  defendant  was  devoted  to  proving  a 
proposition  that  we  have  no  disposition  to  deny,  that  is,  that  a 
common  carrier  can,  by  special  contract,  reasonably  limit  its 
common-law  liability.  But  we  cannot  admit  the  assumed  corol- 
lary that  thereby  it  ceases  to  be  a  common  carrier,  or  ipso  facto 

365 


§  97  EIGHTS  AND  DUTIES  OF  COMMON  CAEEIEE. 

reverses  the  legal  burden  of  proof.  It  is  well  established  that 
where  the  negligence  of  the  defendant  is  the  primary  cause  of 
action,  it  must  be  alleged  and  proved  by  the  plaintiff ;  but  here, 
it  is  merely  incidental  to  the  cause  of  action;  in  fact,  it  arises 
as  a  matter  of  defense.  We  must  not  lose  sight  of  the  real 
cause  of  action,  which  is  the  injury  resulting  from  the  failure 
of  the  defendant  to  seasonably  transport  and  safely  deliver  live 
stock  received  by  it  as  a  common  carrier.  The  plaintiff's  case 
is  fully  made  out  when  he  has  shown  that  the  cattle  were  re- 
ceived by  the  carrier,  and  not  seasonably  and  safely  delivered — • 
that  is,  not  delivered  at  all,  or  delivered  in  a  damaged  condition, 
and  after  an  unreasonable  delay.  The  burden  is  then  upon  the 
defendant,  and  if  it  wishes  to  escape  any  part  of  its  common-law 
liability  by  showing  a  special  contract,  it  must  affirmatively 
prove  such  contract,  and  bring  the  injury  clearly  within  the 
terms  of  it  exemptions.  These  principles  have  been  so  recently 
and  so  fully  discussed  by  this  court  in  Mitchell  v.  Carolina  Cent. 
R.  R.  Co.,  124  N.  C.  236,  32  S.  E.  R.  671,  that  any  further 
elaboration  seems  nee.dless,  at  least  for  the  present.  The  essen- 
tial principle  is  tersely  and  strongly  stated  by  Chief  Justice 
Faircloth  in  Morganton  Mfg.  Co.  v.  Ohio  River,  etc.,  Ry.  Co., 
121  N.  C.  514,  28  S.  E.  R.  474,  61  Am.  St.  R.  679,  where,  speak- 
ing for  a  unanimous  court,  he  says:  "Among  connecting  lines 
of  common  carriers,  that  one  in  whose  hands  goods  are  found 
damaged,  is  presumed  to  have  caused  the  damage,  and  the  bur- 
den is  upon  it  to  rebut  the  presumption." 

The  rule  is  well  stated  in  Greenleaf  on  Evidence,  fourteenth 
edition,  section  219,  in  the  following  language:  "And  if  the 
acceptance  was  special,  the  burden  of  proof  is  still  on  the  carrier 
to  show,  not  only  that  the  cause  of  loss  was  within  the  terms  of 
the  exception  but  also  that  there  was  on  his  part  no  negligence 
or  want  of  due  care."  ^ 

That  this  rule,  which  at  first  was  seriously  questioned,  is  re- 
ceiving almost  general  acceptance,  would  appear  from  the  recent 
work  of  Elliot  on  Railroads,  where  the  authors  say  in  section 
1548,  on  page  2403 :  * '  There  is  some  conflict  among  the  authori- 
ties as  to  the  burden  of  proof  in  such  cases;  but  the  prevailing 
rule  where  the  owner  or  his  agent  does  not  go  with  the  stock  is, 
that  when  the  animals  are  shown  to  have  been  delivered  to  the 
carrier  in  good  condition  and  to  have  been  lost  or  injured  on 
the  way,  the  burden  of  proof  then  rests  upon  the  carrier  to 
show  that  the  loss  or  injury  was  not  caused  by  its  own  negli- 
gence. ' '  This  rule,  which  is  the  natural  result  of  the  prima  facie 
liability  of  the  common  carrier,  is  further  strengthened  by  the 
universal  acceptance  of  the  principal  that  where  a  particular 

366 


HINKLE    V.    SOUTHEKN    EAILWAY    CO.  §  97 

fact,  necessary  to  be  proved,  rests  peculiarly  within  the  knowl- 
edge of  a  party,  upon  him  rests  the  burden  of  proof:  5  Am.  & 
Eng.  Ency.  of  Law,  2d  ed,,  41;  Best  on  Evidence,  sec.  274; 
1  Greenleaf  on  Evidence,  sec.  79 ;  Starkie  on  Evidence,  sec.  589 ; 
Rice  on  Evidence,  sec.  77 ;  Selma,  etc.  R.  R.  Co.  v.  United  States, 
139  U.  S.  560,  567,  11  S.  Ct.  R.  638 ;  State  v.  McDuffie,  107  N. 
C.  885,  888,  12  S.  E.  R.  83 ;  Govan  v.  Gushing,  111  N.  G.  458, 
461,  16  S.  E.  R.  619 ;  Mitchell  v.  Carolina  Cent.  R.  R.  Co.,  124 
N.  G.  236,  32  S.  E.  R.  671.  Some  of  the  earlier  cases  appear 
to  take  the  view  that  a  common  carrier  ceases  to  be  such  when 
it  makes  a  special  contract  and  becomes  a  private  carrier  for 
hire.  Whatever  foundation  may  have  existed  for  such  an  idea 
in  the  earlier  days  of  the  law,  when  common  carriers  were  pri- 
vate individuals  and  carried  their  shipments  in  wagons  or  boats 
on  the  ordinary  public  highway,  without  receiving  or  asking  any 
special  privileges,  has  long  since  disappeared.  A  railroad  com- 
pany is  at  least  a  quasi  public  corporation,  exercising  one  of  the 
highest  prerogatives  of  the  sovereign — that  of  eminent  domain. 
It  is  purely  a  creature  of  the  law,  and  has  no  existence  outside 
of  its  public  capacity.  It  is  a  common  carrier  by  virtue  of  its 
charter,  and  not  by  any  supposed  usage  or  contract  with  the 
shipper.  Its  character  as  such  is  fixed  by  its  contract  with  the 
state,  and  cannot  be  waived  either  by  the  corporation  or  the 
shipper.  It  may  limit  its  liability  to  a  certain  extent  by  special 
contract,  but  cannot  change  its  character.  All  such  contracts 
of  limitation,  being  in  derogation  of  common  law,  are  strictly 
construed,  and  never  enforced  unless  shown  to  be  reasonable : 
Any  doubt  or  ambiguity  therein  is  to  be  resolved  in  favor  of  the 
shipper,  and  it  has  further  been  held  that  the  burden  of 
proof  rested  upon  the  carrier  of  showing  that  all  such  stip- 
ulations and  exemptions  were  reasonabl-e:  Campania  etc.  La 
Flecha  v.  Brauer,  168  U.  S.  104,  118,  18  S.  Gt.  R.  12;  4  Elliott 
on  Railroads,  sec.  1424;  Cox  v.  Central  etc.  R.  R.  Co.,  170 
Mass.  129,  49  N.  E.  R.  97,  9  Am.  &  Eng.  R.  R.  Gases, 
N.  S.  591,  600 ;  Texas  etc.  Ry.  Go.  v.  Reeves,  15  Tex.  Civ.  App. 
157,  39  S.  W.  R.  135,  8  Am.  &  Eng.  R.  R.  Gases,  N.  S.  429; 
5  Am.  &  Eng.  Ency.  of  Law,  2d  ed.,  326.  Stipulations  in  a  bill 
of  lading  are  similar  in  their  nature  to  conditions  in  a  policy 
of  insurance.  It  is^  well  settled  by  the  highest  authority  that 
if  a  policy  is  so  drawn  as  to  require  interpretation  and  to  be 
fairly  susceptible  of  two  different  constructions,  the  one  will 
be  adopted  that  is  most  favorable  to  the  insured,  and  against 
the  construction  which  would  limit  the  liability  of  the  insurer: 
Imperial  Fire  Ins.  Go.  v.  Coos  Co.,  151  U.  S.  452,  14  S.  Gt. 

367 


§  97  EIGHTS  ANJ)  DUTIES  OF  COMMON  CAEKIEE. 

R.  379;  London  Assur.  Assn.  v.  Companhia  de  Moagens  do 
Barreiro,  167  U.  S.  149,  17  S.  Ct.  R.  785. 

In  the  case  at  bar  it  does  not  appear  necessary  for  the  plain- 
tiff to  resort  to  the  burden  of  proof,  as  the  unreasonable  deten- 
tion is  in  itself  evidence  of  negligence.  It  appears  from  the  evi- 
dence that  the  cattle  were  four  days  and  three  nights,  that  is, 
eighty-four  hours,  in  reaching  their  destination,  a  distance  of 
four  hundred  miles.  At  the  present  day  the  transportation  of 
live  stock  over  a  great  trunk  line  of  railway  at  an  average  rate 
of  less  than  five  miles  an  hour  cannot  be  considered  reasonable 
diligence,  in  the  total  absence  of  explanation. 

The  only  remaining  question  is  whether  the  failure  of  the 
plaintiff  to  give  formal  written  notice  of  his  loss  or  intention 
to  demand  compensation  is  an  absolute  bar  to  his  recovery,  if 
otherwise  entitled.  We  think  not.  The  object  of  such  a  stipu- 
lation is  not  to  relieve  the  carrier  from  its  just  liability,  for 
such  a  purpose  would  be  clearly  unlawful,  but  simply  to  give 
it  such  notice  as  will  enable  it  by  proper  investigation  to  protect 
itself  against  unjust  claims.  It  is  not  denied  that  the  plaintiff 
signed  the  receipt  for  the  cattle  under  protest.  These  words 
written  upon  the  receipt  would  be  ample  notice  to  the  defendant 
that  the  plaintiff'  intended  to  enforce  his  rights.  The  meaning 
of  those  words  is  too  well  known  in  the  business  world  to  be 
capable  of  misconstruction.  In  the  present  instance  they  clearly 
meant  that  the  plaintiff  objected  to  receiving  the  cattle  in  their 
damaged  condition,  but  did  so  under  compulsion  of  circum- 
stances to  prevent  still  further  loss,  but  at  the  same  time  retain- 
ing all  his  rights  of  action  against  the  defendant.  If  the  de- 
fendant's agent  had  desired  any  more  specific  notice  or  infor- 
mation, he  might  have  asked  for  it  after  having  been  put  upon 
notice,  but  this  he  did  not  see  fit  to  do.  Even  if  the  protest  had 
been  merely  verbal  and  not  in  writing,  the  stipulation  might  well 
have  been  deemed  to  have  been  waived  under  the  circumstances. 
It  appears  from  the  uncontradicted  testimony  that  the  plaintiff 
suffered  the  injury  and  gave  actual  notice  to  the  defendant  of 
his  claim  for  damages.  We  do  not  see  why  he  cannot  recover. 
Any  other  construction  would  convert  what,  properly  construed, 
is  a  reasonable  stipulation  for  the  proper  protection  of  the  car- 
rier into  an  instrument  of  fraud  and  a  shield  of  wrong.  This 
is  so  clearly  explained  by  Justice  Furches,  speaking  for  the 
court,  in  Wood  v.  Southern  Ry.  Co.,  118  N.  C.  1056,  1063,  24  S. 
E.  R.  704,  as  to  require  no  further  comment.  Judgment  of  the 
court  below  is  affirmed. 


368 


BENNETT  v.    BYEAM  &  CO.  §  98 

98.     BENNETT  V.  BYRAM  &  CO., 
38  Miss.  17;  75  Am.  D.  90.     1859. 

By  Court,  Harris,  J.  The  defendants  in  error  brought  their 
action  in  the  circuit  court  against  the  plaintiff  in  error,  to  re- 
cover damages  against  him  as  a  common  carrier  by  steamboat, 
for  the  non-delivery  of  goods  according  to  contract. 

The  defendant  filed  his  answer,  a  general  denial  of  the  state- 
ment of  the  cause  of  action  in  the  complaint;  upon  which  issue 
was  joined,  and  the  jury  found  a  verdict  for  plaintiff. 

It  is  assigned  for  error  that  the  jury  found  contrary  to  law 
and  evidence;  that  the  court  erred  in  giving  the  charges  asked 
by  plaintiff  below,  and  in  refusing  charges  asked  by  the  de- 
fendant below;  and  lastly,  that  the  court  erred  in  refusing  to 
grant  a  new  trial. 

It  appears  by  the  record  that  on  the  fourth  day  of  June,  1855, 
the  plaintiff  in  error,  as  master  of  the  Eliza  No.  2,  a  steam- 
boat navigating  the  Tombigbee  river  between  Mobile  and  Aber- 
deen, by  bill  of  lading  of  that  date,  contracted  to  deliver  certain 
goods  as  a  carrier  to  the  defendants  in  error. 

The  boat  proceeded  on  her  way  as  far  as  Gainesville,  and  was 
unable  to  proceed  farther  on  account  of  the  low  stage  of  water. 
The  goods  were  stored  in  the  warehouse  of  McMahon  in  June, 
1855;  the  water  remaining  too  low  for  steamboat  navigation 
for  several  months  thereafter. 

On  the  twenty-first  of  August,  1855,  defendants  in  error  sent 
an  order  to  McMahon  for  all  the  goods  except  the  iron,  and  re- 
ceived and  hauled  them  to  Aberdeen.  And  afterwards,  in  Jan- 
uary, 1856,  the  iron  was  shipped  to  plaintiffs  by  the  steamboat 
Champion.  In  this  action,  it  is  sought  to  recover  all  the  ex- 
penses which  defendants  in  error  incurred  after  receiving  the 
goods  at  Gainesville,  and  indeed  after  they  were  left  there  by 
the  plaintiff  in  error,  as  well  as  a  small  amount  of  damage  sus- 
tained by  the  rusting  of  the  iron.  It  is  not  claimed  that  any 
other  damage  was  suffered. 

There  is  no  proof  of  damage  by  negligence  or  other  improper 
conduct  on  the  part  of  plaintiff  in  error,  unless  his  failure  to 
reach  Aberdeen  with  the  goods  intrusted  to  his  care  is  to  be  so 
regarded.  We  lay  out  of  view  all  that  is  said  in  this  record  and 
in  argument  as  to  the  alteration  of  the  bill  of  lading,  and  the 
circumstances  under  which  the  bill  was  signed,  as  wholly  imma- 
terial in  this  case.  The  addition  of  the  words  ''water  permit- 
ting" did  not  change  the  character  of  the  contract,  as  they  are 
24  369 


§  98  EIGHTS  AND  DUTIES  OF  COMMON  CAEKIEE. 

embraced  under  the  general  exception,  "the  act  of  God:"  See 
Angell  on  Carriers,  sees.  289,  333,  and  note  2. 

The  first  question  for  our  determination  upon  the  record  be- 
fore us,  which  it  is  material  to  consider,  is  what  was  the  obliga- 
tion of  the  plaintiff  in  error  under  this  contract  as  a  common 
carrier. 

Admitting  that  this  bill  of  lading  was  intended  as  a  contract 
to  deliver  the  goods  to  the  defendants  in  error  at  Aberdeen 
(which  seems  not  to  have  been  expressed  on  its  face),  the  car- 
rier was  bound  first  to  proceed  without  deviation  from  the  usual 
and  ordinary  course  to  the  place  of  delivery.  He  was  next 
bound  to  deliver  the  goods  to  the  consignees  in  safety  at  all 
events,  excepting  the  act  of  God,  the  public  enemies,  and  the 
act  or  conduct  of  the  owners.  He  was  bound  to  make  delivery 
in  a  reasonable  time  and  with  reasonable  expedition,  as  no  time 
of  delivery  is  specified  in  the  contract.  For,  says  Mr.  Angell, 
in  his  work  on  carriers,  sec.  283,  the  duty  to  deliver,  within  a 
reasonable  time,  is  a  term  ingrafted  by  legal  implication  upon  a 
promise  or  duty  to  carry  generally.  See  also  Hand  v.  Baynes, 
4  Whart.  204,  33  Am.  Dec.  54,  cited  in  note,  and  numerous 
other  cases  cited.  "What  would  be  reasonable  time  must  be  de- 
termined, under  all  the  circumstances,  with  a  view  to  the  condi- 
tion of  the  river,  the  season  of  the  year,  the  state  of  the 
weather,"  etc.:  See  Angell  on  Carriers,  sec.  289,  and  notes  p. 
288;  Hadley  v.  Clarke,  8  T.  R.  259;  Story  on  Bailments,  sec. 
545  a. 

Again:  the  obligation  of  the  carrier  to  deliver  according  to 
his  contract  is  only  suspended  during  any  temporary  obstruc- 
tion. It  is  not  thereby  avoided:  Angell  on  Carriers,  sec.  289, 
and  cases  cited.  Hence,  plaintiff  in  error  was  bound,  notwith- 
standing the  hinderance  of  navigation  by  low  water,  to  deliver 
defendant's  goods  in  safety  as  soon  as  he  could  by  reasonable 
diligence  after  the  removal  of  the  unavoidable  cause  of  delay: 
See  also  Id.,  sec.  294. 

From  the  obligation  to  deliver,  at  all  events,  the  carrier  may^ 
under  certain  circumstances,  be  excused.  And  among  these, 
the  same  learned  author  mentions  the  following:  "If  the  owner 
or  shipper  is  induced  from  any  cause  to  accept  the  goods  short 
of  the  place  to  which  they  were  first  intended  to  be  conveyed, 
the  carrier  is  not  only  discharged  from  liability  further,  but  is 
entitled  to  a  'pro  rata  compensation  for  the  transportation  as  far 
as  it  has  been  continued:"    Angell  on  Carriers,  p.  330,  sec.  331. 

The  acceptance  of  the  ^oods  voluntarily  from  the  warehouse- 
man, knowing  tfiat  the  voyage  had  been  abandoned  on  account 
of  the  low  water,  and  paying  these  charges  for  storage,  will  ex- 

370 


BENNETT  v.  BYRAM  &  CO.  §§  98,  99 

euse  delivery,  and  discharge  the  carrier  from  further  liability 
therefor:  See  Rossiter  v.  Chester,  1  Doug.  (Mich.)  154;  Parsons 
V.  Hardy,  14  Wend.  215,  28  Am.  Dec.  521 ;  Hunt  v.  Haskell,  24 
Me.  339,  41  Am.  Dec.  387 ;  Lorent  v.  Kentring,  1  Nott  &  M.  132. 

In  the  ease  before  us,  the  proof  is  clear,  by  the  testimony 
of  the  parties  themselves,  that  they  did  accept  the  goods  at 
Gainesville,  paid  the  freight  and  storage,  and  hauled  the  goods 
to  Aberdeen — all  except  the  iron — long  before  the  plaintiff  in 
error  could  have  complied  with  his  contract,  or  was  bound  to 
have  made  delivery  under  the  facts  in  proof.  By  this  accept- 
ance, we  have  seen  that  the  plaintiff  in  error  was  discharged  from 
all  subsequent  liability  or  responsibility  on  account  of  his  con- 
tract. Until  the  goods  were  so  accepted,  the  carrier  was  en- 
titled to  no  compensation  before  delivery,  and  was  bound  for 
all  charges  and  expenses  incurred  in  the  preservation  of  the 
goods,  and  all  damage  or  injury  impairing  their  value  while  in 
his  possession.  After  acceptance,  he  was  only  entitled  to  his 
pro  rata  share  of  the  freight.  If  he  received  more  than  the  usual 
freight  from  Mobile  to  Gainesville,  he  is  liable  to  the  defendants 
in  error  for  such  overplus,  if  they  have  been  compelled  to  pay 
it,  or  have  paid  it  to  him  or  to  his  agents  or  factors,  in  order 
to  obtain  their  goods. 

After  acceptance  of  the  goods  at  Gainesville  by  the  owners, 
the  carrier  was  not  bound  for  the  expenses  of  transportation 
from  thence  to  Aberdeen. 

In  view  of  the  case  here  presented,  the  fourth,  fifth,  sixth, 
seventh,  eighth,  ninth,  and  tenth  instructions  were  erroneous, 
and  the  verdict  of  the  jury  for  a  greater  sum  than  the  testimony 
warranted  under  the  principles  above  stated. 

Let  the  judgment  be  reversed,  cause  remanded,  and  a  venire 
de  novo  awarded. 


99.     GEISMER  V.  LAKE  SHORE  AND  MICHIGAN 
SOUTHERN  RAILWAY  CO., 

102  N.  Y.  563;  7  N.  E.  R.  828;  55  Am.  R.  837.     1886. 

Action  for  delay  in  transporting  live  stock.  Judgment  for 
plaintiff. 

Earl,  J.  We  are  of  opinion  that  the  learned  trial  judge  fell 
into  error  as  to  rules  of  law  of  vital  and  controlling  importance 
in  the  disposition  of  this  cause. 

A  railroad  carrier  stands  upon  the  same  footing  as  other 

371 


§  99  EIGHTS  AND  DUTIES  OF  COMMON  CAEKIER. 

carriers,  and  may  excuse  delay  in  the  delivery  of  goods  by  acci- 
dent or  misfortune  not  inevitable  or  produced  by  the  act  of 
God.  All  that  can  be  required  of  it  in  any  emergency  is  that 
it  shall  exercise  due  care  and  diligence  to  guard  against  delay 
and  to  forward  the  goods  to  their  destination;  and  so  it  has 
been  uniformly  decided.  Wibert  v.  N.  Y.  &  Erie  Railroad  Co., 
12  N.  Y.  245;  Blackstock  v.  N.  Y.  &  Erie  Railroad  Co.,  20  N. 
Y.,  48,  75  Am.  Dec.  372. 

In  the  absence  of  special  contract  there  is  no  absolute  duty 
resting  upon  a  railroad  carrier  to  deliver  the  goods  entrusted  to 
it  within  what,  under  ordinary  circumstances,  would  be  a  rea- 
sonable time.  Not  only  storms  and  floods  and  other  natural 
causes  may  excuse  delay,  but  the  conduct  of  men  may  also  do 
so.  An  incendiary  may  burn  down  a  bridge,  a  mob  may  tear 
up  the  tracks  or  disable  the  rolling  stock  or  interpose  irresisti- 
ble force  or  overpowering  intimidation,  and  the  only  duty  rest- 
ing upon  the  carrier,  not  otherwise  in  fault,  is  to  use  reasonable 
efforts  and  due  diligence  to  overcome  the  obstacles  thus  inter- 
posed, and  to  forward  the  goods  to  their  destination. 

While  the  court  below  conceded  this  to  be  the  general  rule, 
it  did  not  give  the  defendant  the  benefit  of  it  because  it  held 
that  the  men  engaged  in  the  violent  and  riotous  resistance  to  the 
defendant  were  its  employees  for  whose  conduct  it  was  responsi- 
ble, and  in  that  holding  was  the  fundamental  error  committed 
by  it.  It  is  true  that  these  men  had  been  in  the  employment 
of  the  defendant.  But  they  left  and  abandoned  that  employ- 
ment. They  ceased  to  be  in  its  service  or  in  any  sense  its  agents, 
for  whose  conduct  it  was  responsible.  They  not  only  refused 
to  obey  its  orders  or  to  render  it  any  service,  but  they  wilfully 
arrayed  themselves  in  positive  hostility  against  it,  and  intimi- 
dated and  defeated  the  efforts  of  employees  who  were  willing  to 
serve  it.  They  became  a  mob  of  vicious  law  breakers  to  be 
dealt  with  by  the  government,  whose  duty  it  was,  by  the  use 
of  adequate  force,  to  restore  order,  enforce  proper  respect  for 
private  property  and  private  rights  and  obedience  to  law.  If 
they  had  burned  down  bridges,  torn  up  tracks,  or  gone  into  pas- 
senger cars  and  assaulted  passengers,  upon  what  principle 
could  it  be  held  that  as  to  such  acts  they  were  the  employees 
of  the  defendant  for  whom  it  was  responsible?  If  they  had 
sued  the  defendant  for  wages  for  the  eleven  days  when  they 
were  thus  engaged  in  blocking  its  business,  no  one  will  claim 
that  they  could  have  recovered. 

It  matters  not,  if  it  be  true,  that  the  strike  was  conceived 
and  organized  while  the  strikers  were  in  the  employment  of 
the  defendant.     In  doing  that  they  were  not  in  its  service  or 

372 


GEISMER  V.  L.  S.  AND  M.  S.  RY.  CO.  §  99 

seeking  to  promote  its  interests  or  to  discharge  any  duty  they 
owed  it ;  but  they  were  engaged  in  a  matter  entirely  outside  of 
their  employment  and  seeking  their  own  ends  and  not  the  inter- 
ests of  the  defendant.  The  mischief  did  not  come  from  the 
strike — from  the  refusal  of  the  employees  to  work,  but  from 
their  violent  and  unlawful  conduct  after  they  had  abandoned 
the  service  of  the  defendant. 

Here  upon  the  facts,  which  we  must  assume  to  be  true,  there 
was  no  default  on  the  part  of  the  defendant.  It  had  employees 
who  were  ready  and  willing  to  manage  its  train  and  carry  for- 
ward the  stock,  and  thus  perform  its  contract  and  discharge  its 
duty;  but  they  were  prevented  by  mob  violence  which  the  de- 
fendant could  not  by  reasonable  efforts  overcome.  That  under 
such  circumstances  the  delay  was  excused  has  been  held  in  sev- 
eral cases  quite  analogous  to  this  which  are  entitled  to  much 
respect  as  authorities.  Pittsburgh  &  C.  R.  Co.  v.  Hazen,  84  111. 
36,  25  Am.  Rep.  422;  Pittsburg,  C.  W.  St.  L.  R.  Co.  v.  Hol- 
lowell,  65  Ind.  188,  32  Am.  Rep.  63;  Bennett  v.  Lake  Shore, 
etc.,  R.  Co.,  6  Am.  &  Eng.  R.  Cas.  391;  I.  &  W.  L.  R.  Co.  v. 
Juntgen,  10  Bradwell  (111.  App.),  295. 

The  cases  of  Weed  v.  Panama  R.  Co.,  17  N.  Y.  362,  72  Am. 
Dec.  474,  and  Blackstock  v.  N.  Y.  &  Erie  R.  Co.,  1  Bosw. 
77;  affirmed,  20  N.  Y.  48,  75  Am.  Dec.  372,  do  not  sustain 
the  plaintiff's  contention  here.  If  in  this  ease  the  employees  of 
the  defendant  had  simply  refused  to  discharge  their  duties, 
or  to  work,  or  had  suddenly  abandoned  its  service,  offering  no 
violence,  and  causing  no  forcible  obstruction  to  its  business 
those  authorities  could  have  been  cited  for  the  maintenance  of 
an  action  upon  principles  stated  in  the  opinions  in  those  cases. 

We  are  therefore  of  opinion  that  this  judgment  should  be 
reversed  and  a  new  trial  granted,  costs  to  abide  event. 

All  concur. 

Judgment  reversed. 


373 


CHAPTER  XII. 

^IB.      LIABILITY   UNDER   SPECIAL    CONTRACT. 

Ms'         7'   100.     HOLLISTER  V.  NOWLEN, 

19  Wend.  (N.  Y.)  234;  32  Am.  D.  455.     1838. 

Action  against  the  proprietors  of  a  stage-coach  as  common 
.carriers  for  the  loss  of  a  trnnk  which  had  been  strapped  in  the 
hoot  of  the  stage.  Three  miles  out  it  was  discovered  that  the 
Entraps  had  been  cut  and  the  trunk  stolen.  Notices  that  baggage 
was  carried  at  the  risk  of  the  owner  were  posted  in  the  stage 
office  and  in  other  public  places. 

By  Court,  Bronson,  J.  Stage-coach  proprietors,  and  other 
carriers  by  land  and  water,  incur  a  very  different  responsibility 
in  relation  to  the  passenger  and  his  baggage.  For  an  injury  to 
the  passenger,  ±hey  are  answerable  only  where  there  has  been  a 
want  of  proper  care,  diligence,  or  skill;  but  in  relation  to  bag- 
gage they  are  regarded  as  insurers,  and  must  answer  for  any  loss 
not  occasioned  by  inevitable  accident,  or  the  public  enemies. 
As  the  point,  though  made,  was  not  discussed  by  the  defendant's 
counsel,  I  shall  content  myself  with  referring  to  a  few  cases  to 
prove  that  they  are  liable,  as  common  carriers,  for  the  loss  or 
injury  of  the  property  of  the  passenger:  Orange  Co.  Bank  v. 
Brown,  9  Wend.  (N.  Y.)  85,  24  Am.  D.  129;  Camden  Company 
V.  Burke,  13  Wend.  (N.  Y.)  611,  28  Am.  D.  488;  Brooke  v. 
Pickwick,  4  Bing.  218;  4  Esp.  177;  2  Kent,  601.  The  fact  that 
the  owner  is  present,  or  sends  his  servant  to  look  after  the  prop- 
erty, does  not  alter  the  case :  Robinson  v.  Dunmore,  2  Bos.  & 
Pul.  418.  Chambre,  J.,  said:  "It  has  been  determined,  that  if 
a  man  travel  in  a  stage-coach  and  take  his  portmanteau  with  him, 
though  he  has  his  eye  upon  the  portmanteau,  yet  the  carrier  is 
not  absolved  from  his  responsibility,  but  will  be  liable  if  the 
portmanteau  be  lost."  The  liability  of  a  carrier  is  like  that  of 
an  inn-keeper;  and  it  was  said  in  Cayle's  Case,  8  Co.  63,  that  "it 
is  no  excuse  for  the  inn-keeper  to  say  that  he  delivered  the  guest 
the  key  of  the  chamber  in  which  he  lodged,  and  that  he  left  the 
door  open;  but  he  ought  to  keep  the  goods  and  chattels  of  his 
guest  there  in  safety. ' '  When  there  is  no  fraud,  the  fact  that 
the  owner  accompanies  the  property,  can  not  affect  the  prin- 
ciple on  which  the  carrier  is  charged^in_case  of  loss. 

374 


HOLLISTEE  v.  NOWLEN.  §  100 

The  principal  question  in  the  cause  arises  out  of  the  notice 
given  by  the  coach  proprietors,  that  baggage  carried  by  the  Tele- 
graph line  would  be  at  the  risk  of  the  owner;  and  the  first  in- 
quiry is,  whether  there  was  sufficient  evidence  to  charge  the 
plaintifi"  with  a  knowledge  of  the  notice.  If  we  are  to  follow  the 
current  of  modern  English  decisions  on  this  subject,  it  cannot  be 
denied  that  there  was  evidence  to  be  left  to  a  jury,  and  upon 
which  they  might  find  that  the  plaintiff  had  seen  the  notice. 
But  I  think  the  carrier,  if  he  can  by  any  means  restrict  his  lia- 
bility, can  only  do  so  by  proving  actual  notice  to  the  owner  of  the 
property.  I  agree  to  the  rule  laid  down  by  Best,  C.  J.,  in  Brooke 
V.  Pickwick,  4  Bing.  218,  decided  in  1827,  when  the  courts  of 
Westminster  hall  had  commenced  retracing  their  steps  in  re- 
lation to  the  liability  of  carriers,  and  were  endeavoring  to 
get  back  on  the  firm  foundation  of  the  common  law.  He  said: 
"If  coach  proprietors  wish  honestly  to  limit  their  responsibility, 
they  ought  to  announce  their  terms  to  every  individual  who 
applies  at  their  office,  and  at  the  same  time  to  place  in  his 
hands  a  printed  paper,  specifying  the  precise  extent  of  their 
engagement.  If  they  omit  to  do  this,  they  attract  customers  un- 
der the  confidence  inspired  by  the  extensive  liability  which  the 
common  law  imposes  upon  carriers,  and  then  endeavor  to  elude 
that  liability  by  some  limitation  which  they  have  not  been  at 
the  pains  to  make  known  to  the  individual  who  has  trusted 
them. ' ' 

I  should  be  content  to  place  my  opinion  upon  the  single 
ground,  that  if  a  notice  can  be  of  avail,  it  must  be  directly 
brought  home  to  the  owner  of  the  property ;  and  that  there  was 
no  evidence  in  this  case  which  could  properly  be  submitted  to  a 
jury  to  draw  the  inference  that  the  plaintiff  knew  on  what 
terms  the  coach  proprietor  intended  to  transact  his  business. 
But  other  questions  have  been  discussed;  and  there  is  another 
case  before  the  court  where  the  judge  at  the  circuit  thought 
the  evidence  sufficient  to  charge  the  plaintiff  with  notice.  It 
will  therefore  be  proper  to  consider  the  other  questions  which 
have  been  made  by  the  counsel. 

Can  a  common  carrier  restrict  his  liability  by  a  general  no- 
tice, in  any  form,  brought  home  to  the  opposite  party  ?  Without 
intending  to  go  much  at  large  into  this  vexed  question,  it  will  be 
necessary  to  state  some  leading  principles  relating  to  the  duties 
and  liabilities  of  the  carrier,  and  the  ground  upon  which  his  re- 
sponsibility rests.  The  rules  of  the  common  law  in  relation 
to  common  carriers  are  simple,  well  defined,  and  what  is  no  less 
important,  well  understood.  The  carrier  is  liable  for  all  losses 
except  those  occasioned  by  the  act  of  God  or  the  public  ene- 

375 


§  100  LIABILITY  UNDER  SPECIAL  CONTRACT. 

mies.  He  is  regarded  as  an  insurer  of  the  property  committed 
to  his  charge,  and  neither  destruction  by  fire,  nor  robbery  by 
armed  men,  will  discharge  him  from  liability.  Holt,  C.  J.,  in 
pronouncing  his  celebrated  judgment  in  the  case  of  Coggs  v. 
Bernard,  2  Ld.  Raym.  918,  said:  "This  is  a  politic  establish- 
ment, contrived  by  the  policy'  of  the  law,  for  the  safety  of  all 
persons,  the  necessity  of  whose  affairs  obliges  them  to  trust  these 
sorts  of  persons,  that  they  may  be  safe  in  their  ways  of  deal- 
ing. ' '  In  Forward  v.  Pittard,  1  T.  R.  27,  where  the  carrier  was 
held  liable  for  a  loss  by  fire.  Lord  Mansfield  said,  that  "to  pre- 
vent litigation,  collusion,  and  the  necessity  of  going  into  cir- 
cumstances impossible  to  be  unraveled,  the  law  presumes  against 
the  carrier,  unless  he  shows  it  was  done  by  the  king's  enemies, 
or  by  such  act  as  could  not  happen  by  the  intervention  of  man,  as 
storms,  lightnings,  and  tempests."  And  in  relation  to  a  loss  by 
robbery  he  said :  "The  true  reason  is,  for  fear  it  may  give  room 
for  collusion,  that  the  master  may  contrive  to  be  robbed  on  pur- 
pose, and  share  the  spoil."  The  rule  has  been  fully  recognized 
in  this  state:  Colt  v.  McMechen,  6  Johns.  (N.  Y.)  160,  5  Am. 
D.  200;  Elliot  V.  Rossell,  10  Johns.  (N.  Y.)  1,  6  Am.  D.  306; 
Kemp  V.  Coughtry,  11  Id.  107.  In  Roberts  v.  Turner,  12  Johns. 
(N.  Y.)  232,  7  Am.  D.  311,  Spencer,  J.,  said,  the  carrier,  "is 
held  responsible  as  an  insurer  of  the  goods,  to  prevent  combi- 
nations, chicanery,  and  fraud." 

A  common  carrier  exercises  a  public  employment,  and  conse- 
quently has  public  duties  to  perform.  He  cannot,  like  the 
tradesman  or  mechanic,  receive  or  reject  a  customer  at  pleasure, 
or  charge  any  price  that  he  chooses  to  demand.  If  he  refuse  to 
receive  a  passenger  or  carry  goods  according  to  the  course  of  his 
particular  employment,  without  a  sufficient  excuse,  he  will  be 
liable  to  an  action ;  and  he  can  only  demand  a  reasonable  com- 
pensation for  his  services,  and  the  hazard  which  he  incurs :  2  Ld. 
Raym.  917;  Bac.  Abr.,  Carriers  B,  Skin.  279;  1  Salk.  249, 
250 ;  5  Bing.  217 ;  3  Taunt.  272,  per  Lawrence,  J. ;  2  Kent.  599 ; 
Story  on  Bail.  328;  Jeremy  on  Carriers,  59. 

It  has  been  said  that  the  carrier  is  liable  in  respect  of  his 
reward:  Lane  v.  Cotton,  1  Salk.  143.  Lord  Coke  says,  "he  hath 
his  hire,  and  thereby  implicitly  undertaketh  the  safe  delivery  of 
the  goods  delivered  to  him:"  Co.  Lit.  89  a.  The  carrier  may 
no  doubt  demand  a  reward  proportioned  to  the  services  he  ren- 
ders and  the  risk  he  incurs;  and  having  taken  it,  he  is  treated 
as  an  insurer,  and  bound  to  the  safe  delivery  of  the  property. 
But  the  extent  of  his  liability  does  not  depend  on  the  terms  of 
his  contract :  it  is  declared  by  law.  His  undertaking,  when  re- 
duced to  form,  does  not  differ  from  that  of  any  other  person 

376 


liOLLISTEE  V.  NOWLEN.  §  100 

who  may  agree  to  cany  goods  from  one  place  to  another;  and 
yet,  one  who  does  not  usually  exercise  this  public  employment, 
will  incur  no  responsibility  beyona  that  of  an  ordinary  bailee 
for  hire;  he  is  not  answerable  for  a  loss  by  any  means  against 
which  he  could  not  have  guarded  by  ordinary  diligence.  It  is 
not  the  form  of  the  contract,  but  the  policy  of  the  law  which  de- 
termines the  extent  of  the  carrier's  liability.  "-ia_Ansell  v.  Water- 
house,  2  Chit.  1,  which  was  an  action  on  the  case  against  the 
proprietor  of  a  stage-coach  for  an  injury  to  the  plaintiff's  wife, 
Holroyd,  J.,  said :  ' '  This  action  is  founded  on  what  is  quite 
collateral  to  the  contract,  if  any;  and  the  terms  of  the  contract, 
unless  changing  the  duty  of  a  common  carrier,  are  in  this  case 
quite  immaterial.  The  declaration  states  an  obligation  imposed 
upon  him  by  the  law.  This  is  an  action  against  a  person,  who, 
by  an  ancient  law,  held,  as  it  were,  a  public  office,  and  was 
bound  to  the  public.  This  action  is  founded  on  the  general  ob- 
ligation of  the  law."  In  Forward  v.  Pittard,  1  T.  R.  27,  Lord 
Mansfield  said :  "It  appears  from  all  the  cases  for  one  hundred 
years  back,  that  there  are  events  for  which  the  carrier  is  liable 
independent  of  his  contract.  By  the  nature  of  his  contract, 
he  is  liable  for  all  due  care  and  diligence ;  and  for  any  negligence 
he  is  suable  on  his  contract.  But  there  is  a  further  degree  of  re- 
sponsibility by  the  custom  of  the  realm,  that  is,  by  the  common 
law;  a  carrier  is  in  the  nature  of  an  insurer."  See  also  Hide 
V.  Proprietors  etc.,  1  Esp.  36. 

The  law  in  relation  to  carriers  has  in  some  instances  operated 
with  severity,  and  they  have  been  charged  with  losses  against 
which  no  degree  of  diligence  could  guard.  But  cases  of  this 
description  are  comparatively  of  rare  occurrence ;  and  the  rea- 
f'on  why  they  are  included  in  the  rule  of  the  common  law,  is 
not  because  it  is  fit  in  itself  that  any  man  should  answer  without 
a  fault,  but  because  there  are  no  means  of  effectually  guarding 
the  public  against  imposition  and  fraud,  without  making  the 
rule  so  broad,  that  it  will  sometimes  operate  harshly.  It  was 
well  remarked  by  Best,  C.  J.,  in  Riley  v.  Home,  5  Bing.  217, 
that  "when  goods  are  delivered  to  the  carrier,  they  are  usually 
no  longer  under  the  eye  of  the  owner ;  he  seldom  follows  or  sends 
any  servant  with  them  to  their  place  of  destination.  If  they 
should  be  lost  or  injured  by  the  grossest  negligence  of  the  car- 
rier or  his  servants,  or  stolen  by  them,  or  by  thieves  in  collusion 
with  them,  the  owner  would  be  unable  to  prove  either  of  these 
causes  of  loss.  His  witnesses  must  be  the  carrier's  servants,  and 
they,  knowing  that  they  could  not  be  contradicted,  would  excuse 
their  masters  and  themselves."  These  remarks  lose  little  of  their 
force  vv'hen  applied  to  the  case  of  passengers  in  stages,  steam- 

377 


§  100  LIABILITY  UNDER  SPECIAL  CONTEACT. 

boats,  and  railroad  cars.  For  although  they  are  in  the  neigh- 
borhood of  their  property,  it  is  neither  under  their  eye,  nor 
have  they  any  efficient  means  of  protecting  it  against  the  eon- 
sequences  of  negligence  and  fraud.  The  traveler  is  usually 
among  strangers;  his  property  is  in  the  hands  of  men  who  are 
sometimes  selected  with  little  regard  to  their  diligence  and  fidel- 
ity; and  if  the  remedy  of  the  owner  in  case  of  loss  depend  on 
the  question  of  actual  negligence  or  fraud,  he  must  make  out 
his  right  to  recover  by  calling  the  very  men  whose  recklessness 
or  frailty  has  occasioned  the  injury.  It  was  remarked  by  Best, 
C.  J.,  in  Brooke  v.  Pickwick,  4  Bing.  218,  that  "though  coach 
proprietors  of  the  present  day  are  a  respectable  and  opulent 
class,  many  of  the  persons  employed  by  them  resemble  those 
whom  the  common  law  meant  to  guard  against." 

There  is  less  of  hardship  in  the  case  of  the  carrier  than  has 
sometimes  been  supposed;  for  while  the  law  holds  him  to  an  ex- 
traordinary degree  of  diligence,  and  treats  him  as  an  insurer 
of  the  property,  it  allows  him,  like  other  insurers,  to  demand  a 
premium  proportioned  to  the  hazards  of  his  emploj'^ment.  The 
rule  is  founded  upon  a  great  principle  of  public  policy;  it  has 
been  approved  by  many  generations  of  wise  men;  and  if  the 
courts  were  now  at  liberty  to  make  instead  of  declaring  the  law, 
it  may  well  be  questioned  whether  they  could  devise  a  system, 
which,  on  the  whole,  would  operate  more  beneficially.  I  feel 
the  more  confident  in  this  remark  from  the  fact  that  in  Great 
Britain,  after  the  courts  had  been  perplexed  for  thirty  years 
with  various  modifications  of  the  law  in  relation  to  carriers,  and 
when  they  had  wandered  too  far  to  retrace  their  steps,  the  legis- 
lature finally  interfered,  and  in  all  its  most  important  features 
restored  the  salutary  rule  of  the  common  law. 

The  doctrine  that  a  carrier  might  limit  his  responsibility  by  a 
general  notice  brought  home  to  the  employer  prevailed  in  Eng- 
land for  only  a  short  period.  In  Smith  v.  Home,  8  Taunt.  144, 
Burrough,  J.,  said :  ' '  The  doctrine  of  notice  was  never  known 
until  the  case  of  Forward  v.  Pittard,  1  T.  R.  27,  which  I  argued 
many  years  ago."  That  case  was  decided  in  1785,  and  it  is 
remarkable  that  it  does  not  contain  one  word  on  the  subject  of 
notice.  If  that  question  was  in  any  form  before  the  court,  it  is 
not  mentioned  by  the  reporter ;  and  the  decision  was  against  the 
carrier,  although  the  loss  was  occasioned  by  fire,  without  his  de- 
fault. The  doctrine  was  first  recognized  in  Westminster  HaU, 
in  1804,  when  the  ease  of  Nicholson  v.  Willan,  5  East,  507,  was 
decided.  Lord  Ellenborough  said,  the  practice  of  making  a 
"special  acceptance"  had  prevailed  for  a  long  time,  and  that 
there  was  "no  case  to  be  met  with  in  the  books  in  which  the 

378 


HOLLISTER  v.  NOWLEN.  §  100 

right  of  a  carrier  thus  to  limit  by  special  contract  his  own  re- 
sponsibility, has  ever  been  by  express  decision  denied."  What- 
ever may  be  the  rule  where  there  is  in  fact  a  special  contract, 
the  learned  judge  could  not  have  intended  to  say,  that  a  carrier 
had  for  a  long  time  been  allowed  to  limit  his  liability  by  a  gen- 
eral notice,  or  that  a  special  contract  had  been  implied  from 
such  a  notice ;  for  he  refers  to  no  case  in  support  of  the  position, 
and  would  have  searched  in  vain  to  find  one.  Only  eleven  years 
before  (in  1793),  Lord  Kenyon  had  expressly  laid  down  a  dif- 
ferent rule  in  Hide  v.  Proprietors  etc.,  1  Esp.  36.  He  said, 
* '  There  is  a  difference  where  a  man  is  chargeable  by  law  general- 
ly, and  where  on  his  contract.  Where  a  man  is  bound  to  any  duty 
and  chargeable  to  a  certain  extent  by  the  operation  of  law,  in 
such  case,  he  can  not  by  any  act  of  his  own  discharge  himself." 
And  he  put  the  case  of  common  carriers,  and  said,  they  cannot 
discharge  themselves  "by  any  act  of  their  own,  as  by  giving  no- 
tice, for  example,  to  that  effect."  This  case  was  afterwards  be- 
fore the  king's  bench,  but  on  another  point:  1  T.  R.  389. 

The  doctrine  in  question  was  not  received  in  Westminster 
Hall  without  much  doubt,  and  although  it  ultimately  obtained 
something  like  a  firm  footing,  many  of  the  English  judges  have 
expressed  their  regret  that  it  was  ever  sanctioned  by  the  courts. 
Departing  as  it  did  from  the  simplicity  and  certainty  of  the 
common  law  rule,  it  proved  one  of  the  most  fruitful  sources  of 
legal  controversy  which  has  existed  in  modern  times.  When  it 
was  once  settled  that  a  carrier  might  restrict  his  liability  by  a 
notice  brought  home  to  his  employer,  a  multitude  of  questions 
sprung  up  in  the  courts  which  no  human  foresight  could  have 
anticipated.  Each  carrier  adopted  such  a  form  of  notice  as  he 
thought  best  calculated  to  shield  himself  from  responsibility 
without  the  loss  of  employment;  and  the  legal  effect  of  each 
particular  form  of  notice  could  only  be  settled  by  judicial  de- 
cision. Wliether  one  who  had  given  notice  that  he  would  not  be 
answerable  for  goods  beyond  a  certain  value  unless  specially  en- 
tered and  paid  for,  was  liable  in  case  of  loss  to  the  extent  of  the 
value  mentioned  in  the  notice,  or  was  discharged  altogether; 
whether,  notwithstanding  the  notice  he  was  liable  for  a  loss  by 
negligence,  and  if  so,  what  degree  of  negligence  would  charge 
him;  what  should  be  sufficient  evidence  that  the  notice  came  to 
the  knowledge  of  the  employer,  whether  it  should  be  left  to  the 
jury  to  presume  that  he  saw  it  in  a  newspaper  which  he  was  ac- 
customed to  read,  or  observed  it  posted  up  in  the  office  where 
the  carrier  transacted  his  business;  and  then,  whether  it  was 
painted  in  large  or  small  letters,  and  whether  the  owner  went 
himself  or  sent  his  servant  with  the  goods,  and  whether  the  ser- 

379 


§  100  LIABILITY  UNDER  SPECIAL  CONTEACT. 

vant  could  read ;  these,  and  many  other  questions  were  debated 
in  the  courts,  while  the  public  suffered  an  almost  incalculable 
injury  in  consequence  of  the  doubt  and  uncertainty  which  hung 
over  this  important  branch  of  the  law:  See  1  Bell's  Com.  474. 
After  years  of  litigation,  parliament  interfered  in  1830,  and 
relieved  both  the  courts  and  the  public,  by  substantially  re- 
asserting the  rule  of  the  common  law:    Stat.  1,  Wm.  IV.,  c.  68. 

Without  going  into  a  particular  examination  of  the  English 
cases,  it  is  sufficient  to  say  that  the  question  has  generally  been 
presented,  on  a  notice  by  the  carrier  that  he  would  not  be  re- 
sponsible for  any  loss  beyond  a  certain  sum,  unless  the  goods 
were  specially  entered  and  paid  for;  and  the  decisions  have  for 
the  most  part  only  gone  far  enough  to  say,  that  if  the  owner  do 
not  comply  with  the  notice  by  stating  the  true  value  of  the 
goods,  and  having  them  properly  entered,  the  carrier  will  be 
discharged.  In  these  cases,  the  carrier  had  not  attempted  to 
exclude  all  responsibility.  But  there  are  two  nisi  prius  de- 
cisions which  allow  the  carrier  to  cast  off  all  liability  whatever. 
In  Maving  v.  Todd,  1  Stark.  72,  the  defendant  had  given  notice 
that  he  would  not  answer  for  a  loss  by  fire,  and  such  a  loss  hav- 
ing occurred,  Lord  Ellenborough  thought  that  carriers  might 
exclude  their  liability  altogether,  and  nonsuited  the  plaintiff. 
In  Leeson  v.  Holt,  1  Stark.  186,  tried  in  1816,  he  made  a  like 
decision;  though  he  very  justly  remarked,  that  "if  this  action 
had  been  brought  twenty  years  ago,  the  defendant  would  have 
been  liable ;  since  by  the  common  law  a  carrier  is  liable  in  all 
cases  except  two."  We  have  here,  what  will  be  found  in  many 
of  the  cases,  a  very  distinct  admission  that  the  courts  had  de- 
parted from  the  law  of  the  land,  and  allowed,  what  Jeremy's 
Treatise  on  Carriers,  35,  36,  very  properly  terms  "recent  inno- 
vations. ' ' 

Some  of  the  cases  which  have  arisen  under  a  general  notice 
have  proceeded  on  the  ground  of  fraud :  Batson  v.  Donovan,  4 
Barn.  &  Aid.  21 ;  others  on  the  notion  of  a  special  acceptance  or 
special  contract:  Nicholson  v.  Willan,  5  East,  507;  Harris  v. 
Packwood,  3  Taunt.  271 ;  while  in  some  instances  it  is  difficult  to 
say  what  general  principle  the  court  intended  to  establish. 

So  far  as  the  cases  have  proceeded  on  the  ground  of  fraud, 
and  can  properly  be  referred  to  that  head,  they  rest  on  a  solid 
foundation ;  for  the  common  law  abhors  fraud,  and  will  not  fail 
to  overthrow  it  in  all  the  forms,  whether  new  or  old,  in  which 
it  may  be  manifested.  As  the  carrier  incurs  a  heavy  responsi- 
bility, he  has  a  right  to  demand  from  the  employer  such  in- 
formation as  will  enable  him  to  decide  on  the  proper  amount  of 
compensation  for  his  services  and  risk,  and  the  degree  of  care 

380 


HOLLISTEE  v.  NOWLEN.  §  100 

which  he  ought  to  bestow  in  discharging  his  trust;  and  if  the 
owner  give  an  answer  which  is  false  in  a  material  point,  the 
carrier  will  be  absolved  from  the  consequences  of  any  loss  not 
occasioned  by  negligence  or  misconduct.  The  case  of  Kenrig  v. 
Eggleston,  Aleyn,  93,  was  decided  in  1649.  The  plaintiff  deliv- 
ered a  box  to  the  porter  of  the  carrier,  saying,  "there  was  a  book 
and  tobacco  in  the  box, ' '  when  in  truth  it  contained  one  hundred 
pounds  in  money,  besides.  Rolle,  J.,  thought  the  carrier  was 
nevertheless  liable  for  a,  loss  by  robbery;  "but  in  respect  of  the 
intended  cheat  to  the  carrier,  he  told  the  jury  they  might  con- 
sider him  in  damages."  The  jury,  however,  found  the  whole 
sum  (abating  the  carriage),  for  the  plaintiff,  quod  durum  vi- 
dehatur  circumstantihus.  In  Gibbon  v.  Paynton,  4  Burr.  2298, 
Lord  Mansfield  said,  this  was  a  case  of  fraud  and  he  "should 
have  agreed  in  opinion  with  the  circumstantihus."  In  Tyly  v. 
Morrice,  Garth.  485,  two  bags  of  money  sealed  up  were  delivered 
to  the  carrier,  saying-  they  contained  two  hundred  pounds,  and 
he  gave  a  receipt  for  the  money.  In  truth  the  bags  contained 
four  hundred  and  fifty  pounds,  and  the  carrier  having  been 
robbed,  paid  the  two  hundred  pounds ;  and  in  this  action  brought 
to  recover  the  balance,  the  chief  justice  told  the  jury,  that 
"since  the  plaintiffs  had  taken  this  course  to  defraud  the  car- 
rier of  his  reward,  they  should  find  for  the  defendant."  And 
the  same  point  was  decided  in  another  action  against  the  same 
carrier.  In  Gibbon  v.  Paynton,  4  Burr,  2298,  one  hundred 
pounds  in  money  was  hid  in  hay  in  an  old  nail-bag,  which  fact 
the  plaintiff  concealed  from  the  carrier;  and  the  money  having 
been  stolen,  the  court  held  that  this  fraud  would  discharge  the 
defendant.  In  the  case  of  the  Orange  Co.  Bank  v.  Brown,  9 
Wend.  (N.  Y.)  85,  24  Am.  D.  129,  the  agent  of  the  plaintiffs 
put  eleven  thousand  dollars  in  bank  bills  in  his  trunk,  and  de- 
livered it  to  the  captain  of  the  steamboat  as  his  baggage.  The 
court  held  that  the  term  baggage  would  only  include  money  for 
the  expenses  of  traveling,  and  not  a  large  sum,  as  in  this  case, 
taken  for  the  mere  purpose  of  transportation;  and  it  was  said 
that  the  conduct  of  the  plaintift"s  agent  was  a  virtual  conceal- 
ment as  to  the  money,  that  ' '  his  representation  of  his  trunk  and 
the  contents  as  baggage,  was  not  a  fair  one,  and  was  calculated 
to  deceive  the  captain. ' '  The  owner  is  not  bound  to  disclose  the 
nature  or  value  of  the  goods;  but  if  he  is  inquired  of  by  the 
carrier,  he  must  answer  truly:  Phillips  v.  Earle,  8  Pick,  182. 

Fraud  cannot,  I  think,  be  imputed  to  the  owner  from  the 
mere  fact  that  he  delivers  goods  after  having  seen  a  general 
notice  published  by  the  carrier,  whatever  may  be  its  purport.  If 
the  carrier  wishes  to  ascertain  the  extent  of  his  risk,  he  should 

381 


§  100  LIABILITY  UNDEE  SPECIAL  CONTRACT. 

inquire  at  the  time  the  goods  are  delivered ;  and  then  if  he  is  not 
answered  truly  he  will  have  a  defense :  See  4  Bing.  218.  A 
different  rule  practically  changes  the  burden  of  proof.  At  the 
common  law,  it  is  enough  that  the  owner  prove  the  undertaking 
of  the  carrier,  and  that  the  goods  did  not  reach  their  destination. 
But  this  doctrine  of  implying  fraud  from  a  notice,  requires  him 
to  go  further,  and  show  that  he  complied  with  the  terms  of  the 
advertisement.  He  may  have  informed  the  carrier  truly  of  the 
value  of  the  goods:  there  may  be  no  fraud,  but  still  he  is  re- 
quired to  prove  himself  innocent  before  he  can  recover.  Inde- 
pendent of  a  notice,  the  onus  would  rest,  where  upon  general 
principles  it  ought  to  rest,  on  him  who  imputes  fraud;  and  the 
carrier  could  not  discharge  himself  without  showing  some  actual 
misrepresentation  or  fraudulent  concealment.  It  does  not  lie  on 
the  employer  to  show  how  the  loss  was  occasioned,  or  that  he 
has  acted  properly;  but  the  law  presumes  against  the  carrier, 
until  he  proves  that  the  loss  happened  by  means  or  under  cir- 
cumstances for  which  he  is  not  answerable :  1  T.  R.  33 ;  Murphy 
V.  Staton,  3  Munf.   (Va.)  239;  Story  on  Bail.  338. 

But  it  is  enough  for  this  case,  that  the  question  of  fraud  can 
never  arise  under  such  a  notice  as  was  given  by  the  defendant. 
He  did  not  say  to  the  public  that  he  would  not  be  answerable 
for  baggage  beyond  a  certain  sum,  unless  the  owner  disclosed 
the  value ;  he  said  he  would  not  be  answerable  in  any  event.  It 
was,  in  effect,  a  notice  that  he  would  not  abide  the  liabilities 
which  the  law,  upon  principles  of  public  policy,  had  attached  to 
his  employment.  If  the  notice  can  aid  the  defendant  in  any 
form,  it  certainly  does  not  go  to  the  question  of  fraud. 

The  only  remaining  ground  of  argument  in  favor  of  the  car- 
rier is,  that  a  special  contract  may  be  inferred  from  the  notice. 
Independent  of  the  modern  English  cases,  it  seems  never  to  have 
been  directly  adjudged  that  the  liability  of  the  carrier  can  be 
restricted  by  a  special  contract.  Nox  (IMaxims),  92,  after  speak- 
ing of  a  loss  by  negligence,  says :  * '  If  a  carrier  would  refuse  to 
carry  unless  a  promise  were  made  to  him  that  he  should  not  be 
charged  with  any  such  miscarriage,  that  promise  were  void. ' '  If 
he  cannot  stipulate  for  a  partial,  it  is  difficult  to  see  how  he  can 
for  a  total  exemption  from  liability.  In  Nicholson  v.  Willan,  5 
East,  513,  Lord  Ellenborough  found  no  direct  adjudication  in 
favor  of  the  position  that  a  carrier  may  limit  his  responsibility 
by  a  special  contract ;  but  he  relied  on  the  fact  that  such  an  ex- 
emption had  never  been  "by  express  decision  denied."  Al- 
though this  mode  of  reasoning  is  not  the  most  conclusive,  I  shall 
not  deny  that  the  carrier  may,  by  express  contract,  restrict  his 
liability;  for,  though  the  point  has  never  been  expressly  ad- 

382 


HOLLISTEE  v.  NOWLETil.  §  100 

judged,  it  has  often  been  assumed  as  good  law:  Aleyn,  93;  4 
Co.  84,  note  to  Southcote's  case;  4  Burr.  2301,  per  Yates,  J;  1 
Vent.  190,  238;  Peak.  N.  P.  Cas.  150;  2  Taunt.  271;  1  Stark. 
186.  If  the  doctrine  be  well  founded,  it  must,  I  think,  proceed 
on  the  ground  that  the  person  intrusted  with  the  goods,  al- 
though he  usually  exercises  that  employment,  does  not  in  the 
particular  case  act  as  a  common  carrier.  The  parties  agree  that 
in  relation  to  that  transaction  he  shall  throw  off  his  public 
character,  and  like  other  bailees  for  hire,  only  be  answerable 
for  negligence  or  misconduct.  If  he  act  as  a  carrier,  it  is  diffi- 
cult to  understand  how  he  can  make  a  valid  contract  to  be  dis- 
charged from  a  duty  or  liability  imposed  upon  him  by  law. 

But  conceding  that  there  may  be  a  special  contract  for  re- 
stricted liability,  such  a  contract  cannot,  I  think,  be  infferred 
from  a  general  notice  brought  home  to  the  employer.  The  ar- 
gument is,  that  where  a  party  delivers  goods  to  be  carried  after 
seeing  a  notice  that  the  carrier  intends  to  limit  his  responsibility, 
his  assent  to  the  terms  of  the  notice  may  be  implied.  But  this 
argument  entirely  overlooks  a  very  important  consideration. 
Notwithstanding  the  notice,  the  owner  has  a  right  to  insist  that 
the  carrier  shall  receive  the  goods  subject  to  all  the  responsibili- 
ties incident  to  his  employment.  If  the  delivery  of  goods  under 
such  circumstances  authorizes  an  implication  of  any  kind,  the 
presumption  is  as  strong,  to  say  the  least,  that  the  owner  in- 
tended to  insist  on  his  legal  rights,  as  it  is  that  he  was  willing  to 
yield  to  the  wishes  of  the  carrier.  If  a  coat  be  ordered  from  a 
mechanic  after  he  has  given  the  customer  notice  that  he  will  not 
furnish  the  article  at  a  less  price  than  one  hundred  dollars,  the 
assent  of  the  customer  to  pay  that  sum,  though  it  be  double  the 
value,  may  perhaps  be  implied;  but  if  the  mechanic  had  been 
under  a  legal  obligation,  not  only  to  furnish  the  coat,  but  to  do 
so  at  a  reasonable  price,  no  such  implication  could  arise.  Now 
the  carrier  is  under  a  legal  obligation  to  receive  and  convey  the 
goods  safely,  or  answer  for  the  loss.  He  has  no  right  to  prescribe 
any  other  terms ;  and  a  notice  can  at  the  most  only  amount  to  a 
proposal  for  a  special  contract,  which  requires  the  assent  of  the 
other  party.  Putting  the  matter  in  the  most  favorable  light  for 
the  carrier,  the  mere  delivery  of  goods  after  seeing  a  notice,  can 
not  warrant  a  stronger  presumption  that  the  owner  intended  to 
assent  to  a  restricted  liability  on  the  part  of  the  carrier,  than  it 
does  that  he  intended  to  insist  on  the  liabilities  imposed  by  law ; 
and  a  special  contract  cannot  be  implied  where  there  is  such  an 
equipoise  of  probabilities. 

Making  a  notice  the  foundation  for  presuming  a  special  con- 
tract, is  subject  to  a  further  objection.     It  changes  the  burden 

383 


§  100  LIABILITY  UNDER  SPECIAL  CONTRACT. 

cf  proof.  Independent  of  the  notice,  it  would  be  sufficient  for 
the  owner  to  prove  the  delivery  and  loss  of  the  goods;  and  it 
would  then  lie  on  the  carrier  to  discharge  himself  by  showing 
a  special  contract  for  a  restricted  liability.  But  giving  effect  to 
the  notice,  makes  it  necessary  for  the  owner  to  go  beyond  the 
delivery  and  loss  of  the  goods,  and  prove  that  he  did  not  assent 
to  the  proposal  for  a  limited  responsibility.  Instead  of  leaving 
the  071US  of  showing  assent  on  him  who  sets  up  that  affirmative 
fact,  it  is  thrown  upon  the  other  party,  and  he  is  required  to 
prove  a  negative,  that  he  did  not  assent. 

After  all  that  has  been  or  can  be  said  in  defense  of  these  no- 
tices, whether  regarded  either  as  a  ground  for  presuming  fraud 
or  implying  a  special  agreement,  it  is  impossible  to  disguise  the 
fact  that  they  are  a  mere  contrivance  to  avoid  the  liability  which 
the  law  has  attached  to  the  employment  of  the  carrier.  If  the 
law  is  too  rigid,  it  should  be  modified  by  the  legislature  and  not 
by  the  courts.  It  has  been  admitted  over  and  over  again  by  the 
most  eminent  English  judges,  that  the  effect  given  to  these  no- 
tices was  a  departure  from  the  common  law ;  and  they  have  often 
regretted  their  inability  to  get  back  again  to  that  firm  founda- 
tion. The  doctrine  that  a  carrier  may  limit  his  responsibility 
by  a  notice,  was  wholly  unknown  to  the  common  law  at  the  time 
of  our  revolution.  It  has  never  been  received  in  this,  nor,  so  far 
as  I  have  observed,  in  any  of  the  other  states.  The  point  has 
been  raised,  but  not  directly  decided:  Barney  v.  Prentiss,  4 
Har.  &  J.  (Md.)  317,  7  Am.  D.  670;  Dwight  v.  Brewster,  1  Pick. 
(Mass.)  50,  11  Am.  D.  133.  Should  it  now  be  received  among 
us,  it  will  be  after  it  has  been  tried,  condemned,  and  abandoned 
m  that  country  to  which  we  have  been  accustomed  to  look  for 
light  on  questions  of  jurisprudence. 

The  act  of  parliament  already  mentioned  enumerates  various 
articles  of  great  value  in  proportion  to  the  bulk,  and  others 
which  are  peculiarly  exposed  to  damage  in  transportation,  and 
declares  that  the  carrier  shall  not  be  liable  for  the  loss  or  injury 
of  those  articles  when  the  value  exceeds  ten  pounds,  unless  at 
the  time  of  delivery  the  owner  shall  declare  the  nature  and  value 
of  the  property,  and  pay  the  increased  charge  which  the  carrier 
is  allowed  to  make  for  his  risk  and  care.  If  the  owner  complies 
with  this  requirement,  the  carrier  must  give  him  a  receipt  for  the 
goods,  "acknowledging  the  same  to  have  been  insured;"  and  if 
he  refuse  to  give  the  receipt,  he  remains  "liable  and  responsible 
as  at  the  common  law."  The  provision  extends  to  the  proprie- 
tors of  stage-coaches  as  well  as  to  all  other  carriers,  and  to  prop- 
erty which  may  "accompany  the  person  of  any  passenger"  as 
well  as  other  goods;  and  the  statute  declares  that  after  the  first 

384 


HOLLISTER  v.  NOWLEN.  §  100 

day  of  September,  1830,  "no  public  notice  or  declaration  here- 
tofore made,  or  hereafter  to  be  made,  shall  be  deemed  or  con- 
strued to  limit,  or  in  any  wise  affect  the  liability  at  common 
law"  of  any  carriers;  but  that  all  and  every  such  carrier  shall 
be  "Jiable  as  at  the  common  law  to  answer"  for  the  loss  or  in- 
jury of  the  property,  ' '  any  public  notice  or  declaration  by  them 
made  and  given  contrary  thereto,  or  in  any  wise  limiting  such 
liability,  notwithstanding."  The  only  modification  of  the  com- 
mon law  rule  in  relation  to  carriers  made  by  this  statute,  is  that 
which  requires  the  owner,  without  a  special  request,  to  disclose 
the  nature  and  value  of  the  package,  when  it  contains  articles 
of  a  particular  description.  The  premium  for  care  and  risk,  the 
carrier  might  have  required  before.  In  relation  to  all  articles 
not  enumerated,  and  in  relation  to  those  also,  if  the  owner  com- 
ply with  the  requirements  of  the  act,  the  carrier  is  declared  lia- 
ble as  an  insurer,  and  must  answer  "as  at  the  common  law." 
The  whole  doctrine  which  has  sprung  up  under  notices,  is  cut  up 
by  the  roots;  and  in  such  language  as  renders  it  apparent  that 
the  legislature  deemed  it  an  innovation  on  the  law  of  the  land. 

If  after  a  trial  of  thirty  years  the  people  of  Great  Britain, 
whose  interests  and  pursuits  are  not  very  dissimiliar  to  our  own, 
have  condemned  the  whole  doctrine  of  limiting  the  carrier's  lia- 
bility by  a  notice;  if  after  a  long  course  of  legal  controversy 
they  have  retraced  their  steps,  and  returned  to  the  simplicity 
and  certainty  of  the  common  law  rule ;  we  surely  ought  to  profit 
by  their  experience,  .and  should  hesitate  long  before  we  sanction 
a  practice  which  not  only  leads  to  doubt  and  uncertainty  con- 
cerning the  rights  and  duties  of  the  parties,  but  which  en- 
courages negligence,  and  opens  a  wide  door  to  fraud. 

If  the  policy  of  the  law  in  relation  to  carriers  were  more 
questionable  than  I  think  it  is,  it  would  be  the  business  of  the 
legislature,  and  not  of  the  courts,  to  apply  the  proper  remedy. 
The  plaintiff  is  entitled  to  judgment  in  pursuance  of  the  stipu- 
lation contained  in  the  case. 

The  chief  justice  conciirred. 

CowEN,  J.,  concurred  in  the  result  for  the  reasons  assigned  by 
him  in  the  case  of  Cole  v.  Goodwin  and  Story,  19  Wend.  251,  32 
Am.  D.  470. 

Judgment  for  the  plaintiff. 


385 


§  101  LIABILITY  UNDER  SPECIAL  CONTEACT. 

101.     BOSTWICK  V.  BALTIMORE  AND  OHIO  RAIL- 
ROAD CO., 

45  N.  Y.  712.     1871. 

Action  to  recover  the  value  of  16  bales  (part  of  54  bales)  of 
cotton,  shipped  from  Cincinnati  to  New  York,  and  lost  at  sea 
between  Baltimore  and  New  York.  No  bill  of  lading  was  de- 
livered at  the  time,  but  one  or  two  days  afterward  the  agent 
of  defendant  sent  to  plaintiff  bills  of  lading  containing  printed 
conditions  limiting  liability  to  the  carrier  in  whose  possession 
the  goods  might  be  at  the  time  of  loss,  and  excusing  from  loss 
or  damage  by  the  dangers  of  navigation.  Judgment  for  de- 
fendant. 

Rapallo,  J.  (Omitting  a  question  of  agency.)  There  was  no 
contradiction  attempted  of  the  evidence  of  the  plaintiff  that  he 
made  a  verbal  contract  with  Cooke  for  the  transportation  of  the 
fifty-four  bales  through  to  New  York  by  "all  rail,"  and  agreed 
to  pay  the  all  rail  route.  The  goods  were  shipped  under  this 
verbal  agreement,  before  any  written  contract  or  bill  of  lading 
had  been  tendered  to  the  plaintiff.  The  verbal  agreement  had 
been  acted  upon,  and  under  it  the  plaintiff  had  parted  with  all 
control  over  his  goods.  The  rule  that  prior  negotiations  are 
merged  in  a  subsequent  written  contract  does  not  apply  to  such  a 
case  as  this. 

If  the  plaintiff  had  expressly  assented  to  the  terms  of  the  bill 
of  lading  subsequently  delivered  to  him,  such  assent  would  ope- 
rate as  a  change  of  the  terms  of  the  contract  originally  made,  and 
under  which  he  had  parted  with  his  property.  But  after  the 
verbal  agreement  had  been  consummated  and  rights  had  ac- 
crued under  it,  the  mere  receipt  of  the  bill  of  lading,  inad- 
vertently omitting  to  examine  the  printed  conditions,  was  not 
sufficient  to  conclude  the  plaintiff  from  showing  what  the  actual 
agreement  was  under  which  the  goods  had  been  shipped. 

In  the  case  of  Corey  v.  The  N.  Y.  Cent.  R.  R.  Co.,  decided  in 
April,  1871,  not  reported,  we  held  that  conditions  contained 
in  a  bill  of  lading,  not  delivered  until  after  the  shipment  and 
loss  of  the  goods,  though  before  the  loss  was  known,  did  not  con- 
trol the  rights  of  the  shippers. 

The  present  case  is  analogous  in  principle  to  the  one  cited. 

The  goods  having  been  shipped  under  an  agreement  that  they 
should  be  carried  "all  rail,"  a  loss  occasioned  by  their  being 
carried  by  sea  is  no  excuse  for  their  non-delivery  to  the  plaintiff. 

386 


EANCHAU  V.  RUTLAND  EAILEOAD  CO.       §§  101,  102 

There  was  also  some  evidence  of  delay  in  sending  forward  the 
portion  of  the  goods  which  was  lost.  This  delay,  unexplained, 
tended  to  show  negligence  on  the  part  of  the  defendant.  It 
is  true  that  there  is  no  allegation  of  negligence  in  the  com- 
plaint. But  the  complaint  alleges  the  non-delivery  of  the  goods, 
which  was  a  breach  of  duty  on  the  part  of  the  defendant,  unless 
excused. 

The  defendant  sets  up,  in  excuse,  the  conditions  of  the  bill 
of  lading,  and  the  loss  of  the  goods  by  the  dangers  of  naviga- 
tion. Even  if  the  conditions  were  binding  upon  the  plaintiff,  it 
was  competent  to  rebut  this  defense  by  showing  that  the  goods 
became  exposed  to  the  danger  by  reason  of  the  default  of  the 
defendant,  and  that  if  they  had  been  forwarded  with  due  dili- 
gence, they  would  not  have  been  on  board  of  the  vessel  which 
was  lost.  (Michaels  v.  The  N.  Y.  Cent.  R.  R.  Co.,  30  N  Y 
564,  86  Am.  D.  415). 

If  there  was  negligence  on  the  part  of  the  defendant  in  send- 
ing forward  the  goods,  the  conditions  of  the  bill  of  lading  would 
not  exempt  the  defendant  from  liability. 

The  judgment  should  be  reversed  and  a  new  trial  ordered, 
with  costs  to  abide  the  event. 


/  102.     RANCH AU  V.  RUTLAND  RAILROAD  CO., 

71  Yt.  142;  43  Atl.  R.    11;  76  Am.  St.  B.    761.     1899. 

Case,  for  loss  of  a  box  checked  by  plaintiff  on  a  ticket  from 
Burlington,  Vermont,  to  Fitchburg,  Massachusetts.  It  appeared 
that  no  such  box  was  put  on  the  train  on  which  plaintiff  trav- 
eled, and  no  trace  of  it  could  be  found, 

Ross,  C.  J.,  (Omitting  questions  of  pleading.)  3.  The  ticket 
sold  by  the  defendant  to  the  plaintiff  contained  a  clause  stating 
that  the  defendant,  "in  selling  the  ticket  and  checking  baggage 
hereon  ....  acts  as  agent,  and  is  not  responsible  beyond  its 
own  line."  The  verdict  of  the  jury  finding  that  the  loss  oc- 
curred on  the  defendant's  own  line,  renders  a  consideration  of 
this  clause  immaterial.  It  also  contains  a  clause  stating,  "Bag- 
gage liability  of  any  company  is  limited  to  wearing  apparel 
not  exceeding  one  hundred  dollars  in  value."  The  special  ver- 
dict finds  that  the  plaintiff's  damages  were  one  hundred  and 
fifty-eight  dollars,  of  which  one  hundred  and  forty-three  dollars 
was  for  wearing  apparel.  The  defendant  contends  that  the 
court  erroneously,  against  its  exception,  rendered  a  judgment 

387 


§  102  LIABILITY  UNDEE  SPECIAL  CONTEACT. 

for  the  largest  sum  named.  This  attempt  of  the  defendant  to 
limit  its  common-law  liability  as  a  common  carrier  must  be  con- 
sidered with  reference  to  the  other  undisputed  facts  stated  in 
the  exceptions.  It  is  there  stated  that  the  evidence  tended  to 
show  that  the  plaintiff  could  neither  read  nor  write;  that  the 
tickets  were  not  read  to  him  by  any  person,  and  that  he  did  not 
know  the  provisions  of  the  tickets.  With  this  testimony  in  the 
case,  the  defendant  was  not  entitled  to  have  the  court  comply 
with  its  four  requests :  "That  the  plaintiff  is  bound  by  the  terms 
of  the  contract  set  forth  on  his  ticket;  that  by  said  contract  the 
defendant  is  only  liable  for  loss  of  baggage  occurring  on  its  own 
line;  that  defendant's  liability  is  limited  to  wearing  apparel  as 
specified  in  the  contract ;  that  the  defendant 's  liability  is  limited 
to  wearing  apparel  not  exceeding  one  hundred  dollars  in  value." 
These  requests  all  assume  that  such  a  contract  existed  between 
the  plaintiff  and  defendant.  This  assumption  was  not  war- 
ranted by  the  testimony  in  the  case. 

The  defendant  by  its  charter  became  a  common  carrier  of 
passengers  and  their  baggage,  subject  to  the  common-law  rules 
in  regard  to  liability  therefor.  By  nearly  universal  concur- 
rence of  decisions  of  courts  of  final  resort,  including  the  deci- 
sions of  this  court,  such  carrier  may  by  contract  reasonably 
limit  and  vary  its  common-law  liability,  except  as  to  its  own 
negligence.  But,  being  by  its  charter  and  occupation  subject 
to  the  common-law  liability,  it  will  be  held  to  that  liability 
unless  it  establishes  that  it  has  limited  or  varied  it  by  a  contract, 
express  or  implied,  existing  between  it  and  its  passenger.  The 
ordinary  passenger  ticket  does  not  profess  to  contain  the  con- 
tract by  which,  the  passenger  obtains  his  right  to  carriage  over 
the  road  of  the  carrier.  It  is  only  a  receipt,  or  token,  given  by 
the  carrier  for  the  passenger  to  show  to  its  servants  and  man- 
agers of  its  trains,  that  he  has  purchased  the  right  to  be  safely 
carried  on  its  trains  between  the  stations  specified.  In  this  re- 
spect it  is  different  from  a  bill  of  lading  for  the  carriage  of 
freight.  "Whatever  is  printed  on  passenger  tickets  has  usually 
been  regarded  as  a  notice  by  the  carrier  of  its  desire  to  limit  or 
vary  its  common-law  liability.  To  effect  such  limitation,  the 
carrier  must  show  that  the  passenger,  when  he  paid  his  money 
and  received  the  ticket,  did  it  under  such  circumstances  that 
he  assented  to  the  conditions  named  upon  the  ticket.  Wliether 
such  assent  is  established  depends  upon  the  circumstances  of 
each  case.  Assent  will  not  be  presumed  unless  a  knowledge  of 
the  proposed  conditions  and  limitations  are  known  by  the  pas- 
senger, and  then  much  will  depend  upon  whether  they  are  rea- 
sonable or  unreasonable.    If  not  entirely  reasonable,  assent  will 

388 


EANCHAU  V.  EUTLAND  EAILEOAD  CO.  §  102 

not  be  presumed  from  knowledge  merely,  because  the  carrier 
without  such  assent  is  under  the  common-law  liability,  and  has 
the  passenger  at  a  disadvantage.  The  passenger's  circum- 
stances and  necessities  may  be  such  as  would  compel  him  to  as- 
sent to  almost  any  conditions  or  limitations.  Hence,  when  the 
conditions  or  limitations  are  not  entirely  reasonable,  it  is  gen- 
erally held  thajt  the  assent  to  them  will  not  be  implied  from  a 
knowledge  oT  tliem;  but  express  assent  must  be  established. 
As  the  defendant  took  no  exceptions  to  the  charge  on  the  sub- 
ject of  the  special  findings  of  the  jury,  it  is  to  be  presumed 
that  the  court  stated  the  law  correctly  in  regard  thereto,  and 
that  the  jury  found,  as  the  plaintiff's  testimony  tended  to  show, 
that  he  had  no  knowledge  of  the  conditions  placed  by  the  de- 
fendant upon  his  ticket  at  the  time  he  purchased  it.  He  must 
have  had  knowledge  of  them  at  the  time  he  paid  his  money. 
"When  purchasing  the  ticket,  the  passenger  frequently  has  no 
opportunity  nor  time  to  examine  it.  He  has  a  right  to  under- 
stand, unless  directly  informed  to  the  contrary,  that  the  car- 
rier's undertaking  has  the  common-law  liability.  It  is  unreason- 
able to  hold,  if  the  conditions  printed  on  the  ticket  come  to  his 
knowledge  first  after  he  has  entered  upon  his  journey,  that  he 
should  be  held  to  have  assented  thereto. 

His  assent  may  well  be  assumed  when  he  knows  that  the 
carrier  is  selling  special  tickets  at  reduced  rates,  with  the  con- 
ditions and  limitations  plainly  stated  in  the  notices  of  the  sale 
of  such  special  tickets :  3  Am.  &  Eng.  Ency.  of  Law,  tit.  Bag- 
gage, Duty  to  Carry,  543,  and  notes,  Limitation  of  Liability, 
554,  and  notes;  5  Am.  &  Eng.  Eney.  of  Law  tit.  carriers  of 
passengers.  Limitations  of  Liability,  608,  612,  and  notes ;  Bissell 
V.  New  York  Cent.  R.  R.  Co.,  25  N.  Y.  442,  82  Am.  Dec.  369, 
and  note;  Hollister  v.  Nowlen,  19  Wend.  (N.  Y.)  234,  32  Am. 
Dec.  455,  and  note;  Cole  v.  Goodwin,  19  Wend.  (N.  Y.)  251,  32 
Am.  Dec.  470,  and  note;  Newell  v.  Smith,  49  Vt.  255;  Mann 
V.  Birchard,  40  Vt.  326,  94  Am.  Dec.  398 ;  Kimball  v.  Rutland 
etc.  R.  R.  Co.,  26  Vt.  247,  62  Am.  Dec.  567;  Farmers'  etc.  Bank 
V.  Champlain  Transp.  Co.,  23  Vt.  186,  56  Am.  Dec.  68 ;  Bluraen- 
thai  v.  Brainerd,  38  Vt.  402,  91  Am.  Dec.  349 ;  Ouimit  v.  Hen- 
shaw,  35  Vt.  605,  84  Am.  Dec.  646;  Thorp  v.  Concord  R.  R. 
Co.,  61  Vt.  378,  17  Atl.  R.  791 ;  Gillis  v.  Western  Union  Tel.  Co., 
61  Vt.  461,  17  Atl.  R.  736,  15  Am.  St.  R.  917 ;  Hodd  v.  Express 
Co.,  52  Vt.  335,  36  Am.  Rep.  757;  Davis  v.  Central  Vermont  R.  R. 
Co.,  66  Vt.  290,  29  Atl.  R.  313,  44  Am.  St.  R.  852;  In  Davis 
V.  Central  Vt.  R.  R.  Co.,  where  a  bill  of  lading  is  considered,  it 
is  said  in  regard  to  notices :  ' '  Notice,  unless  brought  distinctly 
to  the  knowledge  of  the  consignor  in  such  a  manner  that  the  law 

389 


§§102,103  LIABILITY  UNDEE  SPECIAL  CONTEACT. 

will  imply  his  assent  to  the  limitation  contained  in  the  notice, 
will  not  be  considered  as  entering  into  and  forming  a  part  of 
the  contract."  The  special  verdict  does  not  establish  that  the 
plaintiff  had  knowledge  of  the  conditions  printed  upon  his 
ticket,  and  his  assent  thereto  will  not  be  implied.  The  defendant 
rests  under  the  common-law  liability  in  regard  to  the  loss  of  the 
baggage.  That  liability,  as  held  in  Ouimit  v.  Henshaw,  35  Vt. 
605,  84  Am.  Dec.  646,  entitles  the  plaintiff  to  recover  for  the 
bedding  lost,  or  for  his  entire  loss.     .     .     . 

Reversed  and  cause  remanded  because  of  improper  remarks 
of  plaintiff 's  counsel. 


103.     RAILROAD  CO.  V.  LOCKWOOD, 

17  Wallace  (U.  8.)  357.     1873. 

Error  to  the  Circuit  Court  for  the  Southern  District  of  New 
York;  the  case  being  thus: 

Lockwood,  a  drover,  was  injured  whilst  traveling  on  a  stock 
train  of  the  New  York  Central  Railroad  Company,  proceeding 
from  Buffalo  to  Albany  and  brought  this  suit  to  recover  dam- 
ages for  the  injury.  lie  had  cattle  in  the  train,  and  had  been 
required,  at  Buffalo,  to  sign  an  agreement  to  attend  to  the  load- 
ing, transporting,  and  unloading  of  them,  and  to  take  all  risk 
of  injury  to  them  and  of  personal  injury  to  himself,  or  to  whom- 
soever went  with  the  cattle;  and  he  received  what  is  called  a 
drover's  pass;  that  is  to  say,  a  pass  certifying  that  he  had 
shipped  sufficient  stock  to  pass  free  to  Albany,  but  declaring 
that  the  acceptance  of  the  pass  was  to  be  considered  a  waiver 
of  all  claims  for  damages  or  injuries  received  on  the  train.  The 
agreement  stated  its  consideration  to  be  the  carrying  of  the 
plaintiff's  cattle  at  less  than  traiff  rates.  It  was  shown  on  the 
trial,  that  these  rates  were  about  three  times  the  ordinary  rates 
charged,  and  that  no  drover  had  cattle  carried  on  those  terms; 
but  that  all  signed  similar  agreements  to  that  which  was  signed 
by  the  plaintiff,  and  received  similar  passes.  Evidence  was 
given  on  the  trial  tending  to  show  that  the  injury  complained 
of  was  sustained  in  consequence  of  negligence  on  the  part  of 
the  defendants  or  their  servants,  but  they  insisted  that  they 
were  exempted  by  the  terms  of  the  contract  from  responsibility 
for  all  accidents,  including  those  occurring  from  negligence, 
at  least  the  ordinary  negligence  of  their  servants ;  and  requested 
the  judge  so  to  charge.  This  he  refused,  and  charged  that  if  the 
jury  were  satisfied  that  the  injury  occurred  without  any  negli- 

390 


EAILEOAD  CO.  v.  LOCKWOOD.  §  103 

gence  on  the  part  of  the  plaintiff,  and  that  the  negligence  of  the 
defendants  caused  the  injury,  they  must  find  for  the  plaintiff, 
which  they  did.  Judgment  being  entered  accordingly,  the  rail- 
road company  took  this  writ  of  error. 

Mr.  Justice  Bradley  delivered  the  opinion  of  the  court. 
It  may  be  assumed  in  limine,  that  the  case  was  one  of  carriage 
for  hire ;  for  though  the  pass  certifies  that  the  plaintiff  was  en- 
titled to  pass  free,  yet  his  passage  was  one  of  the  mutual  terms 
of  the  arrangement  for  carrying  his  cattle.  The  question  is, 
therefore,  distinctly  raised,  whether  a  railroad  company  carry- 
ing passengers  for  hire,  can  lawfully  stipulate  not  to  be  answer- 
able for  their  own  or  their  servants'  negligence  in  reference  to 
such  carriage. 

As  the  duties  and  responsibilities  of  public  carriers  were  pre- 
scribed by  public  policy,  it  has  been  seriously  doubted  whether 
the  courts  did  wisely  in  allowing  that  policy  to  be  departed 
from  without  legislative  interference,  by  which  needed  modifica- 
tions could  have  been  introduced  into  the  law.  But  the  great 
hardship  on  the  carrier  in  certain  special  cases,  where  goods  of 
great  value  or  subject  to  extra  risk  were  delivered  to  him  with- 
out notice  of  their  character,  and  where  losses  happened  by  sheer 
accident  without  any  possibility  of  fraud  or  collusion  on  his 
part,  such  as  by  collisions  at  sea,  accidental  fire,  &c.,  led  to  a 
relaxation  of  the  rule  to  the  extent  of  authorizing  certain  ex- 
emptions from  liability  in  such  cases  to  be  provided  for,  either 
by  public  notice  brought  home  to  the  owners  of  the  goods,  or 
by  inserting  exemptions  from  liability  in  the  bill  of  lading,  or 
other  contract  of  carriage.  A  modification  of  the  strict  rule  of 
responsibility,  exempting  the  carrier  from  liability  for  acci- 
dental losses,  where  it  can  be  safely  done,  enables  the  carrying 
interest  to  reduce  its  rates  of  compensation ;  thus  proportionally 
relieving  the  transportation  of  produce  and  merchandise  from 
some  of  the  burden  with  which  it  is  loaded. 

The  question  is,  whether  such  modification  of  responsibility 
by  notice  or  special  contract  may  not  be  carried  beyond  legiti- 
mate bounds,  and  introduce  evils  against  which  it  was  the  direct 
policy  of  the  law  to  guard ;  whether,  for  example,  a  modification 
which  gives  license  and  immunity  to  negligence  and  carelessness 
on  the  part  of  a  public  carrier  or  his  servants,  is  not  so  evidently 
repugnant  to  that  policy  as  to  be  altogether  null  and  void;  or, 
at  least  null  and  void  under  certain  circumstances. 

In  the  case  of  sea-going  vessels.  Congress  has,  by  the  act  of 
1851,  relieved  ship-owners  from  all  responsibility  for  loss  by 
fire  unless  caused  by  their  own  design  or  neglect ;  and  from  re- 

391 


§  103  LIABILITY  UNDER  SPECIAL  CONTRACT. 

sponsibility  for  loss  of  money  and  other  valuables  named,  un- 
less notified  of  their  character  and  value;  and  has  limited  their 
liability  to  the  value  of  ship  and  freight,  where  losses  happen 
by  the  embezzlement  or  other  act  of  the  master,  crew,  or  passen- 
gers ;  or  by  collision,  or  any  cause  occurring  without  their  privity 
or  knowledge;  but  the  master  and  crew  themselves  are  held  re- 
sponsible to  the  parties  injured  by  their  negligence  or  miscon- 
duct. Similar  enactments  have  been  made  by  state  legis- 
latures. This  seems  to  be  the  only  important  modification  of  pre- 
viously existing  law  on  the  subject,  which  in  this  country  has 
been  effected  by  legislative  interference.  And  by  this,  it  is  seen, 
that  though  intended  for  the  relief  of  the  ship-owner,  it  still 
leaves  him  liable  to  the  extent  of  his  ship  and  freight  for  the 
negligence  and  misconduct  of  his  employees,  and  liable  without 
limit  for  his  own  negligence. 

It  is  true  that  the  first  section  of  the  above  act  relating  to  loss 
by  fire  has  a  proviso,  that  nothing  in  the  act  contained  shall 
prevent  the  parties  from  making  such  contract  as  they  please, 
extending  or  limiting  the  liability  of  ship-owners.  This  proviso, 
however,  neither  enacts  nor  affirms  anything.  It  simply  ex- 
presses the  intent  of  Congress  to  leave  the  right  of  contracting 
as  it  stood  before  the  act.  • 

The  courts  of  New  York,  where  this  case  arose,  for  a  long 
time  resisted  the  attempts  of  common  carriers  to  limit  their 
common-law  liability,  except  for  the  purpose  of  procuring  a  dis- 
closure of  the  character  and  value  of  articles  liable  to  extra  haz- 
ard and  risk.  This,  they  were  allowed  to  enforce  by  means  of 
a  notice  of  non-liability,  if  the  disclosure  was  not  made.  But 
such  announcements  as  "all  baggage  at  the  risk  of  the  owner," 
and  such  exceptions  in  bills  of  lading  as  "this  company  will  not 
be  responsible  for  injuries  by  fire,  nor  for  goods  lost,  stolen,  or 
damaged,"  were  held  to  be  unavailing  and  void,  as  being  against 
the  policy  of  the  law. 

But  since  the  decision  of  the  case  of  The  New  Jersey  Steam 
Navigation  Company  v.  Merchants'  Bank,  by  this  court,  in  Jan- 
uary Term,  1848,  6  How.  344,  it  has  been  uniformly  held,  as  well 
in  the  courts  of  New  York  as  in  the  Federal  courts,  that  a  com- 
mon carrier  may,  by  special  contract,  limit  his  common-law  lia- 
bility; although  considerable  diversity  of  opinion  has  existed  as 
to  the  extent  to  which  such  limitation  is  admissible. 

The  case  of  the  New  Jersey  Steam  Navigation  Company  v. 
Merchants'  Bank,  above  adverted  to,  grew  out  of  the  burning 
of  the  steamer  Lexington.  Certain  money  belonging  to  the 
bank  had  been  intrusted  to  Harnden's  Express,  to  be  carried 
to  Boston,  and  was  on  board  the  steamer  when  she  was  de- 

392 


EAILEOAD  CO.  v.  LOCKWOOD.  §  103 

troyed.  By  agreement  between  the  steamboat  company  and 
Harnden,  the  crate  of  the  latter  and  its  contents  were  to  be 
at  his  sole  risk.  The  court  held  this  agreement  valid,  so  far 
as  to  exonerate  the  steamboat  company  from  the  responsibility 
imposed  by  law;  but  not  to  excuse  them  from  misconduct  or 
negligence,  which  the  court  said  it  would  not  presume  that  the 
parties  intended  to  include,  although  the  terms  of  the  contract 
were  broad  enough  for  that  purpose;  and  that  inasmuch  as  the 
company  had  undertaken  to  carry  the  goods  from  one  place  to 
another,  they  were  deemed  to  have  incurred  the  same  degree 
of  responsibility  as  that  which  attaches  to  a  private  person  en- 
gaged casually  in  the  like  occupation,  and  were,  therefore, 
bound  to  use  ordinary  care  in  the  custody  of  the  goods,  and  in 
their  delivery,  and  to  provide  proper  vehicles  and  means  of 
conveyance  for  their  transportation ;  and  as  the  court  was  of 
opinion  that  the  steamboat  company  had  been  guilty  of  negli- 
gence in  these  particulars,  as  well  as  in  the  management  of  the 
steamer  during  the  fire,  they  held  them  responsible  for  the  loss. 

As  this  has  been  regarded  as  a  leading  case,  we  may  pause 
for  a  moment  to  observe  that  the  case  before  us  seems  almost 
precisely  within  the  category  of  that  decision.  In  that  case, 
as  in  this,  the  contract  was  general,  exempting  the  carrier  from 
every  risk  and  imposing  it  all  upon  the  party;  but  the  court 
would  not  presume  that  the  parties  intended  to  include  the 
negligence  of  the  carrier  or  his  agents  in  that  exception. 

It  is  strenuously  insisted,  however,  that  as  negligence  is  the 
only  ground  of  liability  in  the  carriage  of  passengers,  and  as  the 
contract  is  absolute  in  its  terms,  it  must  be  construed  to  em- 
brace negligence  as  well  as  accident,  the  former  in  reference  to 
passengers,  and  both  in  reference  to  the  cattle  carried  in  the 
train.  As  this  argument  seems  plausible,  and  the  exclusion 
of  a  liability  embraced  in  the  terms  of  exemption  on  the  ground 
that  it  could  not  have  been  in  the  mind  of  the  parties  is  some- 
what arbitrary,  we  will  proceed  to  examine  the  question  before 
propounded,  namely,  whether  common  carriers  may  excuse  them- 
selves from  liability  for  negligence.  In  doing  so  we  shall  first 
briefly  review  the  course  of  decisions  in  New  York,  on  which 
great  stress  has  been  laid,  and  which  are  claimed  to  be  decisive 
of  the  question.  Whilst  we  cannot  concede  this,  it  is,  never- 
theless, due  to  the  courts  of  that  state  to  examine  carefully 
the  grounds  of  their  decision  and  to  give  them  the  weight  which 
they  justly  deserve.  We  think  it  will  be  found,  however,  that 
the  weight  of  opinion,  even  in  New  York,  is  not  altogether  on 
the  side  that  favors  the  right  of  the  carrier  to  stipulate  for  ex- 

393 


§  103  LIABILITY  UNDER  SPECIAL  CONTKACT. 

emption  from  the  consequences  of  his  own  or  his  servants'  negli- 
gence. 

The  first  recorded  ease  that  arose  in  New  York  after  the 
before-mentioned  decision  in  this  court,  involving  the  right  of 
a  carrier  to  limit  his  liability,  was  that  of  Dorr  v.  The  New 
Jersey  Steam  Navigation  Company,  4  Sandf.  136,  decided  in 
1850.  This  case  also  arose  out  of  the  burning  of  the  Lexington, 
under  a  bill  of  lading  which  excepted  from  the  company's  risk 
"danger  of  fire,  water,  breakage,  leakage,  and  other  accidents." 
Judge  Campbell,  delivering  the  opinion  of  the  court,  says:  "A 
common  carrier  has  in  truth  two  distinct  liabilities, — the  one  for 
losses  by  accident  or  mistake,  where  he  is  liable  as  an  insurer; 
the  other  for  losses  by  default  or  negligence,  where  he  is  an- 
swerable as  an  ordinary  bailee.  It  would  certainly  seem  rea- 
sonable that  he  might,  by  express  special  contract,  restrict  his 
liability  as  insurer;  that  he  might  protect  himself  against 
misfortune,  even  though  public  policy  should  require  that  he 
should  not  be  permitted  to  stipulate  for  impunity  where  the 
loss  occurs  from  his  own  default  or  neglect  of  duty.  Such  we 
understand  to  be  the  doctrine  laid  down  in  the  case  of  The  New 
Jersey  Steam  Navigation  Company  v.  The  Merchants'  Bank,  in 
6th  How^ard,  and  such  we  consider  to  be  the  law  in  the  present 
case."  And  in  Stoddard  v.  Long  Island  Railroad  Company,  5 
Sandf.  180,  another  express  case,  in  which  it  was  stipulated  that 
the  express  company  should  be  alone  responsible  for  all  losses, 
Judge  Duer,  for  the  court,  says:  "Conforming  our  decisions  to 
that  of  the  Supreme  Court  of  the  United  States,  we  must,  there- 
fore, hold :  1st.  That  the  liability  of  the  defendants  as  common 
carriers  was  restricted  by  the  terms  of  the  special  agreement  be- 
tween them  and  Adams  &  Co.,  and  that  this  restriction  was  valid 
in  law.  2d.  That  by  the  just  interpretation  of  this  agreement 
the  defendants  were  not  to  be  exonerated  from  all  losses,  but 
remained  liable  for  such  as  might  result  from  the  wrongful  acts, 
or  the  want  of  due  care  and  diligence  of  themselves  or  their 
agents  and  servants.  3d.  That  the  plaintiffs,  claiming  through 
Adams  &  Co.,  are  bound  by  the  special  agreement."  The  same 
view  was  taken  in  subsequent  cases,  all  of  which  show  that  no 
idea  was  then  entertained  of  sanctioning  exemptions  of  liability 
for  negligence.    13  Barb.  353,  14  Barb.  524. 

It  was  not  till  1858,  in  the  case  of  Welles  v.  New  York  Central 
Railroad  Company,  26  Barb.  641,  that  the  Supreme  Court  was 
brought  to  assent  to  the  proposition  that  a  common  carrier  may 
stipulate  against  responsibility  for  the  negligence  of  his  servants. 
That  was  the  case  of  a  gratuitous  passenger  traveling  on  a  free 
ticket,  which  exempted  the  company  from  liability.    In  1862  the 

394 


EAILROAD  CO.  v.  LOCKWOOD.  §  103 

Court  of  Appeals,  24  N.  Y.  181,  by  a  majority  affirmed  tliis  judg- 
ment, and  in  answer  to  the  suggestion  that  public  policy  required 
that  railroad  companies  should  not  be  exonerated  from  the  duty 
of  carefulness  in  performing  their  important  and  hazardous  du- 
ties, the  court  held  that  the  ease  of  free  passengers  could  not 
seriously  affect  the  incentives  to  carefulness,  because  there  were 
very  few  such,  compared  with  the  great  mass  of  the  traveling 
public.  Perkins  v.  The  New  York  Central  Railroad  Company, 
24  N.  Y.  196,  82  Am.  D.  281,  was  also  the  case  of  a  free  passen- 
ger, with  a  similar  ticket,  and  the  court  held  that  the  indorsement 
exempted  the  company  from  all  kinds  of  negligence  of  its  agents, 
gross  as  well  as  ordinary;  that  there  is,  in  truth,  no  practical 
distinction  in  the  degrees  of  negligence. 

The  next  cases  of  importance  that  arose  in  the  New  York 
courts  were  those  of  drovers'  passes,  in  which  the  passenger  took 
all  responsibility  of  injury  to  himself  and  stock.  The  first  was 
that  of  Smith  v.  The  New  York  Central  Railroad  Company, 
29  Barbour,  132,  decided  in  March,  1859.  The  contract  was 
precisely  the  same  as  that  in  the  present  case.  The  damage 
arose  from  a  flattened  wheel  in  the  car,  which  caused  it  to  jump 
the  track.  The  Supreme  Court,  by  Hogeboom,  J.,  held  that  the 
railroad  company  was  liable  for  any  injury  happening  to  the 
passenger,  not  only  by  the  gross  negligence  of  the  company's 
servants,  but  by  ordinary  negligence  on  their  part.  "For  my 
part,"  says  the  judge,  "I  think  not  only  gross  negligence  is  not 
protected,  by  the  terms  of  the  contract,  but  what  is  termed 
ordinary  negligence,  or  the  withholding  of  ordinary  care,  is  not 
so  protected.  I  think,  notwithstanding  the  contract,  the  carrier 
is  responsible  for  what,  independent  of  any  peculiar  responsi- 
bility attached  to  his  calling  or  employment,  would  be  regarded 
as  fault  or  misconduct  on  his  part."  The  judge  added  that  he 
thought  the  carrier  might,  by  positive  stipulation,  relieve  him- 
self to  a  limited  degree  from  the  consequences  of  his  own  negli- 
gence or  that  of  his  servants.  But,  to  accomplish  that  object, 
the  contract  must  be  clear  and  specific  in  its  terms,  and  plainly 
covering  such  a  case.  Of  course,  this  remark  was  extrajudicial. 
The  judgment  itself  was  affirmed  by  the  Court  of  Appeals  in 
1862  by  a  vote  of  five  judges  to  three.  24  N.  Y.  222.  Judge 
Wright  strenuously  contended  that  it  is  against  public  policy  for 
a  carrier  of  passengers,  where  human  life  is  at  stake,  to  stipulate 
for  immunity  for  any  want  of  care.  "Contracts  in  restraint  of 
trade  are  void,"  he  says,  "because  they  interfere  with  the  wel- 
fare and  convenience  of  the  State ;  yet  the  State  has  a  deep  inter- 
est in  protecting  the  lives  of  its  citizens."  He  argued  that  it  was 
a  question  affecting  the  public,  and  not  alone  the  party  who  is 

395 


§  103  LIABILITY  UNDEE  SPECIAL  CONTRACT. 

carried.  Judge  Sutherland  agreed  in  substance  with  Judge 
Wright.  Two  other  judges  held  that  if  the  party  injured  had 
been  a  gratuitous  passenger  the  company  would  have  been  dis- 
charged, but  in  their  view  he  was  not  a  gratuitous  passenger. 
One  judge  was  for  affirmance,  on  the  ground  that  the  negligence 
was  that  of  the  company  itself.  The  remaining  three  judges 
held  the  contract  valid  to  the  utmost  extent  of  exonerating  the 
company,  notwithstanding  the  grossest  neglect  on  the  part  of 
its  servants. 

In  that  case,  as  in  the  one  before  us,  the  contract  was  general 
in  its  terms,  and  did  not  specify  negligence  of  agents  as  a  risk 
assumed  by  the  passenger,  though  by  its  generality  it  included 
all  risks. 

The  next  case,  Bissell  v.  The  New  York  Central  R.  R.  Co.,  29 
Barb.  602,  first  decided  in  September,  1859,  differed  from  the 
preceding  in  that  the  ticket  expressly  stipulated  that  the  railroad 
company  should  not  be  liable  under  any  circumstances,  ' '  wiiether 
of  negligence  hy  their  agents,  or  otherwise/'  for  injury  to  the 
person  or  stock  of  the  passenger.  The  latter  was  killed  by  the 
express  train  running  into  the  stock  train,  and  the  jury  found 
that  his  death  was  caused  by  the  gross  negligence  of  the  agents 
and  servants  of  the  defendants.  The  Supreme  Court  held  that 
gross  negligence  (whether  of  servants  or  principals)  cannot  be 
excused  by  contract  in  reference  to  the  carriage  of  passengers 
for  hire,  and  that  such  a  contract  is  against  the  policy  of  the 
law,  and  void.  In  December,  1862,  this  judgment  was  reversed 
by  the  Court  of  Appeals,  25  N.  Y.  442,  82  Am.  D.  369,  four 
judges  against  three ;  Judge  Smith,  w^ho  concurred  in  the  judg- 
ment below,  having  in  the  meantime  changed  his  views  as  to  the 
materiality  of  the  fact  that  the  negligence  stipulated  against  was 
that  of  the  servants  of  the  company,  and  not  of  the  company 
itself.  The  majority  now  held  that  the  ticket  was  a  free  ticket, 
as  it  purported  to  be,  and,  therefore,  that  the  case  was  governed 
by  Welles  v.  The  Central  Railroad  Company ;  but  whether  so,  or 
not,  the  contract  was  founded  on  a  valid  consideration,  and  the 
passenger  was  bound  by  it  even  to  the  assumption  of  the  risk 
arising  from  the  gross  -  negligence  of  the  company 's  servants. 
Elaborate  opinions  were  read  by  Justice  Selden  in  favor,  and  by 
Justice  Denio  against  the  conclusion  reached  by  the  court.  The 
former  considered  that  no  rule  of  public  policy  forbids  such  con- 
tracts, because  the  public  is  amply  protected  by  the  right  of  every 
one  to  decline  any  special  contract,  on  paying  the  regular  fare 
prescribed  by  law,  that  is,  the  highest  amount  which  the  law  al- 
lows the  company  to  charge.  In  other  words,  unless  a  man 
chooses  to  pay  the  highest  amount  which  the  company  by  its 

396 


RAILROAD  CO.  v.  LOCKWOOD.  §  103 

charter  is  authorized  to  charge,  he  must  submit  to  their  terms, 
however  onerous.  Justice  Denio,  with  much  force  of  argument, 
combated  this  view,  and  insisted  upon  the  impolicy  and  immor- 
ality of  contracts  stipulating  immunity  for  negligence,  either  of 
servants  or  principals,  where  the  lives  and  safety  of  passengers 
are  concerned.  The  late  case  of  Poucher  v.  New  York  Central 
Railroad  Company,  49  N.  Y.  263,  10  Am.  R.  364,  is  in  all  essen- 
tial respects  a  similar  case  to  this,  and  a  similar  result  was 
reached. 

These  are  the  authorities  which  we  are  asked  to  follow.  Cases 
may  also  be  found  in  some  of  the  other  State  courts  which,  by 
dicta  or  decision  either  favor  or  follow,  more  or  less  closely,  the 
decisions  in  New  York.  A  reference  to  the  principal  of  them 
is  all  that  is  necessary  here. 

A  review  of  the  cases  decided  by  the  courts  of  New  York 
shows  that  though  they  have  carried  the  power  of  the  common 
carrier  to  make  special  contracts  to  the  extent  of  enabling  him 
to  exonerate  himself  from  the  effects  of  even  gross  negligence, 
yet  that  this  effect  has  never  been  given  to  a  contract  general 
in  its  terms.  So  that  if  we  only  felt  bound  by  those  precedents, 
we  could,  perhaps,  find  no  authority  for  reversing  the  judgment 
in  this  case.  But  on  a  question  of  general  commercial  law,  the 
Federal  courts  administering  justice  in  New  York  have  equal 
and  co-ordinate  jurisdiction  with  the  courts  of  that  State.  And 
in  deciding  a  case  which  involves  a  question  of  such  importance 
to  the  w^hole  country;  a  question  on  which  the  courts  of  New 
York  have  expressed  such  diverse  views,  and  have  so  recently 
and  with  such  slight  preponderancy  of  judicial  suffrage,  come  to 
the  conclusion  that  they  have,  we  should  not  feel  satisfied  with- 
out being  able  to  place  our  decision  upon  grounds  satisfactory 
to  ourselves,  and  resting  upon  what  we  consider  sound  principles 
of  law. 

In  passing,  however,  it  is  apposite  to  call  attention  to  the 
testimony  of  an  authoritative  witness  as  to  the  operation  and 
effect  of  the  recent  decisions  referred  to.  "The  fruits  of  this 
rule, ' '  says  Judge  Davis,  ' '  are  already  being  gathered  in  increas- 
ing accidents,  through  the  decreasing  care  and  vigilance  on  the 
part  of  these  corporations;  and  they  will  continue  to  be  reaped 
until  a  just  sense  of  public  policy  shall  lead  to  legislative  re- 
striction upon  the  power  to  make  this  kind  of  contracts."  32  N. 
Y.  337,  88  Am.  D.  332. 

(Omitting  the  consideration  of  eases  decided  in  other  states.) 

The  question  arose  in  England  principally  upon  public  notices 
given  by  common  carriers  that  they  would  not  be  responsible 
for  valuable  goods  unless  entered  and  paid  for  according  to 

397 


§  103  LIABILITY  UNDEE  SPECIAL  CONTKACT. 

value.  The  courts  held  that  this  was  a  reasonable  condition, 
and,  if  brought  home  to  the  owner,  amounted  to  a  special  con- 
tract valid  in  law.  But  it  was  also  held  that  it  could  not  ex- 
onerate the  carrier  if  a  loss  occurred  by  his  actual  misfeasance 
or  gross  negligence.  Or,  as  Starkie  says,  "proof  of  a  direct  mis- 
feasance or  gross  negligence  is  in  effect  an  answer  to  proof  of 
notice."  But  the  term  "gross  negligence"  was  so  vague  and 
uncertain  that  it  came  to  represent  every  instance  of  actual  neg- 
ligence of  the  carrier  or  his  servant— or  ordinary  negligence  in 
the  accustomed  mode  of  speaking.  Justice  Story,  in  his  work 
on  bailments,  originally  published  in  1832,  says  that  it  is  now 
held  that,  in  cases  of  such  notices,  the  carrier  is  liable  for 
losses  and  injury  occasioned  not  only  by  gross  negligence,  but 
by  ordinary  negligence ;  or,  in  other  words,  the  carrier  is  bound 
to  ordinary  diligence. 

In  estimating  the  effect  of  these  decisions  it  must  be  remem- 
bered that,  in  the  cases  covered  by  the  notices  referred  to,  the 
exemption  claimed  was  entire,  covering  all  cases  of  loss,  negli- 
gence as  well  as  others.    They  are,  therefore,  directly  in  point. 

In  1863,  in  the  great  case  of  Peek  v.  The  North  Staffordshire 
Railway  Company,  10  H.  L.  Cas.  473,  Mr.  Justice  Blackburn,  in 
the  course  of  a  very  clear  and  able  review  of  the  law  on  the  sub- 
ject, after  quoting  this  passage  from  Justice  Story's  work,  pro- 
ceeds to  say :  "  In  my  opinion,  the  weight  of  authority  was,  in 
1832,  in  favor  of  this  view  of  the  law,  but  the  cases  decided  in  our 
courts  between  1832  and  1854  established  that  this  was  not  the 
law,  and  that  a  carrier  might,  by  a  special  notice,  make  a  contract 
limiting  his  responsibility  even  in  the  cases  here  mentioned,  of 
gross  negligence,  misconduct  or  fraud  on  the  part  of  his  servants ; 
and,  as  it  seems  to  me,  the  reason  why  the  legislature  intervened 
in  the  Railway  and  Canal  Traffic  Act,  1854,  was  because  it 
thought  that  the  companies  took  advantage  of  those  decisions 
(in  Story's  language),  'to  evade  altogether  the  salutary  policy 
of  the  common  law.'  " 

This  quotation  is  sufficient  to  show  the  state  of  the  law  in 
England  at  the  time  of  the  publication  of  Justice  Story's  work; 
and  it  proves  that,  at  that  time,  common  carriers  could  not  stip- 
ulate for  immunity  for  their  own  or  their  servants'  negligence. 
But  in  the  case  of  Carr  v.  Lancashire  Railroad  Company,  7  Ex. 
707,  and  other  cases  decided  whilst  the  change  of  opinion  alluded 
to  by  Justice  Blackburn  was  going  on  (several  of  which  related  to 
the  carriage  of  horses  and  cattle) ,  it  was  held  that  carriers  could 
stipulate  for  exemption  from  liability  for  even  their  own  gross 
negligence.  Hence  the  act  of  1854  was  passed,  called  the  Rail- 
way and  Canal  Traffic  Act,  declaring  that  railway  and  canal 

398 


RAILROAD  CO.  v.  LOCKWOOD.  §  103 

companies  should  be  liable  for  negligence  of  themselves  or  their 
servants,  notwithstanding  any  notice  or  condition,  unless  the 
court  or  judge  trying  the  cause  should  adjudge  the  conditions 
just  and  reasonable.  Upon  this  statute  ensued  a  long  list  of 
cases  deciding  what  conditions  were  or  were  not  just  and  rea- 
sonable. The  truth  is,  that  this  statute  did  little  more  than  bring 
back  the  law  to  the  original  position  in  which  it  stood  before  the 
English  courts  took  their  departure  from  it.  But  as  we  shall 
have  occasion  to  advert  to  this  subject  again,  w^e  pass  it  for 
the  present.  It  remains  to  see  what  has  been  held  by  this  court 
on  the  subject  now  under  consideration. 

We  have  already  referred  to  the  leading  case  of  The  New  Jer- 
sey Steam  Navigation  Company  v.  Merchants'  Bank.  On  the 
precise  point  now  under  consideration,  Justice  Nelson  said,  *'If 
it  is  competent  at  all  for  the  carrier  to  stipulate  for  the  gross 
negligence  of  himself  and  his  servants  or  agents,  in  the  trans- 
portation of  goods,  it  should  be  required  to  be  done,  at  least,  in 
terms  that  would  leave  no  doubt  as  to  the  meaning  of  the 
parties. ' ' 

As  to  carriers  of  passengers,  Mr.  Justice  Grier,  in  the  case 
of  Philadelphia  and  Reading  Railroad  v.  Derby,  14  How.  486,  de- 
livering the  opinion  of  the  court,  said :  ' '  When  carriers  under- 
take to  convey  persons  by  the  powerful  but  dangerous  agency  of 
steam,  public  policy  and  safety  require  that  they  be  held  to  the 
greatest  possible  care  and  diligence.  And  whether  the  considera- 
tion for  such  transportation  be  pecuniary  or  otherwise,  the  per- 
sonal safety  of  the  passengers  should  not  be  left  to  the  sport  of 
chance,  or  the  negligence  of  careless  agents.  Any  negligence,  in 
such  cases,  may  well  deserve  the  epithet  of  '  gross. '  ' '  That  was 
the  case  of  a  free  passenger,  a  stockholder  of  the  company,  taken 
over  the  road  by  the  president  to  examine  its  condition;  and  it 
was  contended  in  argument  that,  as  to  him,  nothing  but  "gross 
negligence"  would  make  the  company  liable.  In  the  subsequent 
case  of  The  Steamboat  New  World  v.  King,  16  How.  469,  474, 
which  w^as  also  the  case  of  a  free  passenger,  carried  on  a  steam- 
boat, and  injured  by  the  explosion  of  the  boiler,  Curtis,  Justice, 
delivering  the  judgment,  quoted  the  above  proposition  of  Jus- 
tice Grier,  and  said:  "We  desire  to  be  understood  to  reaffirm 
that  doctrine,  as  resting  not  only  on  public  policy,  but  on  sound 
principles  of  law," 

In  York  Company  v.  Central  Railroad,  3  Wall.  113,  the  court, 
after  conceding  that  the  responsibility  imposed  on  the  carrier  of 
goods  by  the  common  law  may  be  restricted  and  qualified  by  ex- 
press stipulation,  adds:  "When  such  stipulation  is  made,  and  it 
does  not  cover  losses  from  negligence  or  misconduct,  we  can 

399 


§  103  LIABILITY  UNDER  SPECIAL  CONTEACT. 

perceive  no  just  reason  for  refusing  its  recognition  and  en- 
forcement." In  the  case  of  Walker  v.  The  Transportation  Com- 
pany, 3  ib.  150,  decided  at  the  same  term,  it  is  true,  the  owner  of 
a  vessel  destroyed  by  fire  on  the  lakes,  was  held  not  to  be  responsi- 
ble for  the  negligence  of  the  officers  and  agents  having  charge  of 
the  vessel;  but  that  was  under  the  act  of  1851,  which  the  court 
held  to  apply  to  our  great  lakes  as  well  as  to  the  sea.  And  in  Ex- 
press Company  v.  Kountze  Brothers,  8  ib.  342,  353,  where  the 
carriers  were  sued  for  the  loss  of  gold-dust  delivered  to  them  on  a 
bill  of  lading  excluding  liability  for  any  loss  or  damage  by  fire, 
act  of  God,  enemies  of  the  government  or  dangers  incidental  to 
a  time  of  war,  they  were  held  liable  for  a  robbery  by  a  predatory 
band  of  armed  men  (one  of  the  excepted  risks) ,  because  they  neg- 
ligently and  needlessly  took  a  route  which  was  exposed  to  such 
incursions.  The  judge,  at  the  trial,  charged  the  jury  that  al- 
though the  contract  was  legally  sufficient  to  restrict  the  liability 
of  the  defendants  as  common  carriers,  yet  if  they  were  guilty  of 
actual  negligence,  they  were  responsible;  and  that  they  were 
chargeable  with  negligence  unless  they  exercised  the  care  and 
prudence  of  a  prudent  man  in  his  own  affairs.  This  was  held  by 
this  court  to  be  a  correct  statement  of  the  law. 

Some  of  the  above  citations  are  only  expressions  of  opinion, 
it  is  true ;  but  they  are  the  expressions  of  judges  whose  opinions 
are  entitled  to  much  weight;  and  the  last-cited  case  is  a  judg- 
ment upon  the  precise  point.  Taken  in  connection  with  the  con- 
curring decisions  of  State  cour!:s  before  cited,  they  seem  to  us 
decisive  of  the  question,  and  leave  but  little  to  be  added  to  the 
considerations  which  they  suggest. 

It  is  argued  that  a  common  carrier,  by  entering  into  a  special 
contract  with  a  party  for  carrying  his  goods  or  person  on  modi- 
fied terms,  drops  his  character  and  becomes  an  ordinary  bailee 
for  hire,  and,  therefore,  may  make  any  contract  he  pleases.  That 
is,  he  may  make  any  contract  whatever,  because  he  is  an  ordinary 
bailee ;  and  he  is  an  ordinary  bailee  because  he  has  made  the 
contract. 

We  are  unable  to  see  the  soundness  of  this  reasoning.  It 
seems  to  us  more  accurate  to  say  that  common  carriers  are  such 
by  virtue  of  their  occupation,  not  by  virtue  of  the  responsibilities 
under  which  they  rest.  Those  responsibilities  may  vary  in  dif- 
ferent countries,  and  at  different  times,  without  changing  the 
character  of  the  employment.  The  common  law  subjects  the  com- 
mon carrier  to  insurance  of  the  goods  carried,  except  as  against 
the  act  of  God  or  public  enemies.  The  civil  law  excepts,  also, 
losses  by  means  of  any  superior  force,  and  any  inevitable  acci- 
dent.   Yet  the  employment  is  the  same  in  both  eases.     And  If 

400 


KAILKOAD  CO.  v.  LOCKWOOD.  §  103 

by  special  agreement  the  carrier  is  exempted  from  still  other 
responsibilities,  it  does  not  follow  that  his  employment  is 
changed,  but  only  that  his  responsibilities  are  changed.  The 
theory  occasionaly  announced,  that  a  special  contract  as  to  the 
terms  and  responsibilities  of  carriage  changes  the  nature  of  the 
employment,  is  calculated  to  mislead.  The  responsibilities  of  a 
common  carrier  may  be  reduced  to  those  of  an  ordinary  bailee 
for  hire,  whilst  the  nature  of  his  business  renders  him  a  common 
carrier  still.  Is  there  any  good  sense  in  holding  that  a  railroad 
company,  whose  only  business  is  to  carry  passengers  and  goods, 
and  which  was  created  and  established  for  that  purpose  alone, 
is  changed  to  a  private  carrier  for  hire  by  a  mere  contract  with 
a  customer,  whereby  the  latter  assumes  the  risk  of  inevitable  ac- 
cidents in  the  carriage  of  his  goods?  Suppose  the  contract  re- 
lates to  a  single  crate  of  glass  or  crockery,  whilst  at  the  same 
time  the  carrier  receives  from  the  same  person  twenty  other 
parcels,  respecting  which  no  such  contract  is  made.  Is  the  com- 
pany a  public  carrier  as  to  the  twenty  parcels  and  a  private  car- 
rier as  to  the  one  ? 

On  this  point  there  are  several  authorities  which  support  our 
view,  some  of  which  are  noted  in  the  margin.  (2  Ohio  St.  131,  4 
id.  362,  2  Rich.  286,  9  id.  201,  37  Ala.  247.) 

A  common  carrier  may,  undoubtedly,  become  a  private  car- 
rier, or  a  bailee  for  hire,  when,  as  a  matter  of  accommodation  or 
special  engagement,  he  undertakes  to  carry  something  which 
it  is  not  his  business  to  carry.  For  example,  if  a  carrier  of  pro- 
duce, running  a  truck  boat  between  New  York  City  and  Nor- 
folk, should  be  requested  to  carry  a  keg  of  specie,  or  a  load  of 
expensive  furniture,  which  he  could  justly  refuse  to  take,  such 
agreement  might  be  made  in  reference  to  his  taking  and  carry- 
ing the  same  as  the  parties  chose  to  make,  not  involving  any 
stipulation  contrary  to  law  or  public  policy.  But  when  a  car- 
rier has  a  regularly  established  business  for  carrying  all  or  cer- 
tain articles,  and  especially  if  that  carrier  be  a  corporation  cre- 
ated for  the  purpose  of  the  carrying  trade,  and  the  carriage  of 
the  articles  is  embraced  within  the  scope  of  its  chartered  powers, 
it  is  a  common  carrier,  and  a  special  contract  about  its  responsi- 
bility does  not  divest  it  of  the  character. 

But  it  is  contended  that  though  a  carrier  may  not  stipulate 
for  his  own  negligence,  there  is  no  good  reason  why  he  should 
not  be  permitted  to  stipulate  for  immunity  for  the  negligence 
of  his  servants,  over  whose  actions,  in  his  absence,  he  can  exer- 
cise no  control.  If  we  advert  for  a  moment  to  the  fundamental 
principles  on  which  the  law  of  common  carriers  is  founded,  it 
will  be  seen  that  this  objection  is  inadmissible.  In  regulating 
26  401 


§  103  LIABILITY  UNDEE  SPECIAL  CONTEAGT. 

the  public  establishment  of  common  carriers,  the  great  object 
of  the  law  was  to  secure  the  utmost  care  and  diligence  in  the 
performance  of  their  important  duties — an  object  essential  to 
the  welfare  of  every  civilized  community.  Hence  the  common- 
law  rule  which  charged  the  common  carrier  as  an  insurer.  Why 
charge  him  as  such  ?  Plainly  for  the  purpose  of  raising  the  most 
stringent  motive  for  the  exercise  of  carefulness  and  fidelity  in 
his  trust.  In  regard  to  passengers  the  highest  degree  of  care- 
fulness and  diligence  is  expressly  exacted.  In  the  one  case  the 
securing  of  the  most  exact  diligence  and  fidelity  underlies  the 
law,  and  is  the  reason  for  it ;  in  the  other  it  is  directly  and  ab- 
solutely prescribed  by  the  law.  It  is  obvious,  therefore,  that 
if  a  carrier  stipulate  not  to  be  bound  to  the  exercise  of  care  and 
diligence,  but  to  be  at  liberty  to  indulge  in  the  contrary,  he  seeks 
to  put  off  the  essential  duties  of  his  employment.  And  to  as- 
sert that  he  may  do  so  seems  almost  a  contradiction  in  terms. 

Now,  to  what  avail  does  the  law  attach  these  essential  duties 
to  the  employment  of  the  common  carrier,  if  they  may  be  waived 
in  respect  to  his  agents  and  servants,  especially  where  the  car- 
rier is  an  artificial  being,  incapable  of  acting  except  by  agents 
and  servants?  It  is  carefulness  and  diligence  in  performing  the 
service  which  the  law  demands,  not  an  abstract  carefulness  and 
diligence  in  proprietors  and  stockholders  who  take  no  active 
part  in  the  business.  To  admit  such  a  distinction  in  the  law 
of  common  carriers,  as  the  business  is  now  carried  on,  would 
be  subversive  of  the  very  object  of  the  law. 

It  is  a  favorite  argument  in  the  cases  which  favor  the  exten- 
sion of  the  carrier's  right  to  contract  for  exemption  from  liabil- 
ity, that  men  must  be  permitted  to  make  their  own  agreements, 
and  that  it  is  no  concern  of  the  public  on  what  terms  an  indi- 
vidual chooses  to  have  his  goods  carried.  Thus,  in  Dorr  v.  The 
New  Jersey  Steam  Navigation  Company,  supra,  the  court  sums 
up  its  judgment  thus:  ''To  say  the  parties  have  not  a  right  to 
make  their  own  contract,  and  to  limit  the  precise  extent  of  their 
own  respective  risks  and  liabilities,  in  a  matter  no  way  affecting 
the  public  morals,  or  conflicting  with  the  public  interests,  would, 
in  my  judgment,  be  an  unwarrantable  restriction  upon  trade  and 
commerce,  and  a  most  palpable  invasion  of  personal  right." 

Is  it  true  that  the  public  interest  is  not  affected  by  individual 
contracts  of  the  kind  referred  to?  Is  not  the  whole  business 
community  affected  by  holding  such  contracts  valid?  If  held 
valid,  the  advantageous  position  of  the  companies  exercising 
the  business  of  common  carriers  is  such  that  it  places  it  in  their 
power  to  change  the  law  of  common  carriers  in  effect,  by  intro- 
ducing new  rules  of  obligation. 

402 


EAILEOAD  CO.  v.  LOCKWOOD.  §  103 

The  carrier  and  his  customer  do  not  stand  on  a  footing  of 
equality.  The  latter  is  only  one  individual  of  a  million.  He 
cannot  afford  to  higgle  or  stand  out  and  seek  redress  in  the 
courts.  His  business  will  not  admit  such  a  course.  He  prefers, 
rather,  to  accept  any  bill  of  lading,  or  sign  any  paper  the  car- 
rier presents;  often,  indeed,  without  knowing  what  the  one  or 
the  other  contains.  In  most  cases,  he  has  no  alternative  but  to 
do  this,  or  abandon  his  business.  In  the  present  case,  for  ex- 
ample, the  freight  agent  of  the  company  testified  that  though 
they  made  forty  or  fifty  contracts  every  week  like  that  under 
consideration,  and  had  carried  on  the  business  for  years,  no  other 
arrangement  than  this  was  ever  made  with  any  drover.  And 
the  reason  is  obvious  enough — if  they  did  not  accept  this,  they 
must  pay  tariff  rates.  These  rates  were  70  cents  a  hundred 
pounds  for  carrying  from  Buffalo  to  Albany,  and  each  horned 
animal  was  rated  at  2000  pounds,  making  a  charge  of  $14  for 
every  animal  carried,  instead  of  the  usual  charge  of  $70  for  a 
car-load ;  being  a  difference  of  three  to  one.  Of  course  no  drover 
could  afford  to  pay  such  tariff  rates.  This  fact  is  adverted  to 
for  the  purpose  of  illustrating  how  completely  in  the  power  of 
the  railroad  companies  parties  are ;  and  how  necessary  it  is  to 
stand  firmly  by  those  principles  of  law  by  which  the  public 
interests  are  protected. 

If  the  customer  had  any  real  freedom  of  choice,  if  he  had 
a  reasonable  and  practicable  alternative,  and  if  the  employment 
of  the  carrier  were  not  a  public  one,  charging  him  with  the  duty 
of  accommodating  the  public  in  the  line  of  his  employment; 
then,  if  the  customer  chose  to  assume  the  risk  of  negligence,  it 
could  with  more  reason  be  said  to  be  his  private  affair,  and  no 
concern  of  the  public.  But  the  condition  of  things  is  entirely 
different,  and  especially  so  under  the  modified  arrangements 
which  the  carrying  trade  has  assumed.  The  business  is  mostly 
concentrated  in  a  few  powerful  corporations,  whose  position  in 
the  body  politic  enables  them  to  control  it.  They  do,  in  fact, 
control  it,  and  impose  such  conditions  upon  travel  and  trans- 
portation as  they  see  fit,  which  the  public  is  compelled  to  accept. 
These  circumstances  furnish  an  additional  argument,  if  any 
were  needed,  to  show  that  the  conditions  imposed  by  common 
carriers  ought  not  to  be  adverse  (to  say  the  least)  to  the  dictates 
of  public  policy  and  morality.  The  status  and  relative  position 
of  the  parties  render  any  such  conditions  void.  Contracts .  of 
common  carriers,  like  those  of  persons  occupying  a  fiduciary 
character,  giving  them  a  position  in  which  they  can  take  undue 
advantage  of  the  persons  with  whom  they  contract,  must  rest 
upon  their  fairness  and  reasonableness.     It  was  for  the  reason 

403 


§  103  LIABILITY  UNDEE  SPECIAL  CONTKACT. 

that  the  limitations  of  liability  first  introduced  by  common  car- 
riers into  their  notices  and  bills  of  lading  were  just  and  reason- 
able, that  the  courts  sustained  them.  It  was  just  and  reasonable 
that  they  should  not  be  responsible  for  losses  happening  by 
sheer  accident,  or  dangers  of  navigation  that  no  human  skill  or 
vigilance  could  guard  against;  it  was  just  and  reasonable  that 
they  should  not  be  chargeable  for  money  or  other  valuable  arti- 
cles liable  to  be  stolen  or  damaged,  unless  apprised  of  their  char- 
acter or  value;  it  was  just  and  reasonable  that  they  should  not 
be  responsible  for  articles  liable  to  rapid  decay,  or  for  live  ani- 
mals liable  to  get  unruly  from  fright  and  to  injure  themselves 
in  that  state,  when  such  articles  or  live  animals  became  injured 
without  their  fault  or  negligence.  And  when  any  of  these  just 
and  reasonable  excuses  were  incorporated  into  notices  or  special 
contracts  assented  to  by  their  customers,  the  law  might  well  give 
effect  to  them  without  the  violation  of  any  important  principle, 
although  modifjdng  the  strict  rules  of  responsibility  imposed 
by  the  common  law.  The  improved  state  of  society  and  the  bet- 
ter administration  of  the  laws,  had  diminished  the  opportunities 
of  collusion  and  bad  faith  on  the  part  of  the  carrier,  and  ren- 
dered less  imperative  the  application  of  the  iron  rule,  that  he 
must  be  responsible  at  all  events.  Hence,  the  exemptions  re- 
ferred to  were  deemed  reasonable  and  proper  to  be  allowed. 
But  the  proposition  to  allow  a  public  carrier  to  abandon  alto- 
gether his  obligations  to  the  public,  and  to  stipulate  for  ex- 
emptions that  are  unreasonable  and  improper,  amounting  to  an 
abdication  of  the  essential  duties  of  his  employment,  would 
never  have  been  entertained  by  the  sages  of  the  law. 

Hence,  as  before  remarked,  we  regard  the  English  statute 
called  the  Railway  and  Canal  Traffic  Act,  passed  in  1854,  which 
declared  void  all  notices  and  conditions  made  by  common  car- 
riers except  such  as  the  judge,  at  the  trial,  or  the  courts  should 
hold  just  and  reasonable,  as  substantialy  a  return  to  the  rules 
of  the  common  law.  It  would  have  been  more  strictly  so,  per- 
haps, had  the  reasonableness  of  the  contract  been  referred  to 
the  law  instead  of  the  individual  judges.  The  decisions  made 
for  more  than  half  a  century  before  the  courts  commenced  the 
abnormal  course  which  led  to  the  necessity  of  that  statute,  giv- 
ing effect  to  certain  classes  of  exemptions  stipulated  for  by  the 
carrier,  may  be  regarded  as  authorities  on  the  question  as  to 
what  exemptions  are  just  and  reasonable.  So  the  decisions  of 
our  own  courts  are  entitled  to  like  effect  when  not  made  under 
the  fallacious  notion  that  every  special  contract  imposed  by  the 
common  carrier  on  his  customers  must  be  carried  into  effect,  for 
the  simple  reason  that  it  was  entered  into,  without  regard  to  the 

404 


EAILEOAD  CO.  v.  LOCKWOOD.  §  103 

character  of  the  contract  and  the  relative  situation  of  the  parties. 

Conceding,  therefore,  that  special  contracts,  made  by  common 
carriers  with  their  customers,  limiting  their  liability,  are  good 
and  valid  so  far  as  they  are  just  and  reasonable;  to  the  extent 
for  example,  of  excusing  them  for  all  losses  happening  by  acci- 
dent, without  any  negligence  or  fraud  on  their  part ;  when  they 
ask  to  go  still  further,  and  to  be  excused  for  negligence — an  ex- 
cuse so  repugnant  to  the  law  of  their,  foundation  and  to  the 
public  good — they  have  no  longer  any  plea  of  justice  or  reason 
to  support  such  a  stipulation,  but  the  contrary.  And  then,  the 
inequality  of  the  parties,  the  compulsion  under  wdiich  the  cus- 
tomer is  placed,  and  the  obligations  of  the  carrier  to  the  public, 
operate  with  full  force  to  divest  the  transaction  of  validity. 

On  this  subject  the  remarks  of  Chief  Justice  Redfield,  in  his 
recent  collection  of  American  Railway  Cases,  seem  to  us  emi- 
nently just.  "It  being  clearly  established,  then,"  says  he, 
"that  common  carriers  have  public  duties  which  they  are  bound 
to  discharge  with  impartiality,  we  must  conclude  that  they  can- 
not, either  by  notices  or  special  contracts,  release  themselves 
from  the  performance  of  these  public  duties,  even  by  the  con- 
sent of  those  who  employ  them ;  for  all  extortion  is  done  by  the 
apparent  consent  of  the  victim.  A  public  officer  or  servant,  who 
has  a  monopoly  in  his  department,  has  no  just  right  to  impose 
onerous  and  unreasonable  conditions  upon  those  who  are  com- 
pelled to  employ  him."  And  his  conclusion  is,  that  notwith- 
standing some  exceptional  decisions,  the  law'  of  to-day  stands 
substantially  as  follows:  "1.  That  the  exemption  claimed  by 
carriers  must  be  reasonable  and  just,  otherwise  it  will  be  re- 
garded as  extorted  from  the  owners  of  the  goods  by  duress  of 
circumstances,  and  therefore  not  binding.  2.  That  every  attempt 
of  carriers,  by  general  notices  or  special  contract,  to  excuse  them- 
selves from  responsibility  for  losses  or  damages  resulting  in  any 
degree  from  their  o^^m  want  of  care  and  faithfulness,  is  against 
that  good  faith  which  the  law  requires  as  the  basis  of  all  con- 
tracts or  employments,  and,  therefore,  based  upon  principles  and 
a  policy  which  the  law  will  not  uphold. ' ' 

The  defendants  endeavor  to  make  a  distinction  between  gross 
and  ordinary  negligence,  and  insist  that  the  judge  ought  to  have 
charged  that  the  contract  was  at  least  effective  for  excusing  the 
latter. 

We  have  already  adverted  to  the  tendency  of  judicial  opinion 
adverse  to  the  distinction  between  gross  and  ordinary  negligence. 
Strictly  speaking,  these  expressions  are  indicative  rather  of  the 
degree  of  care  and  diligence  which  is  due  from  a  party  and  which 
he  fails  to  perform,  than  of  the  amount  of  inattention,  careless- 

405 


§  103  LIABILITY  UNDER  SPECIAL  CONTRACT. 

ness,  or  stupidity  which  he  exhibits.  If  very  little  care  is  due 
from  him,  and  he  fails  to  bestow  that  little,  it  is  called  gross 
negligence.  If  very  great  care  is  due,  and  he  fails  to  come  up 
to  the  mark  required,  it  is  called  slight  negligence.  And  if  or- 
dinary care  is  due,  such  as  a  prudent  man  would  exercise  in  his 
own  affairs,  failure  to  bestow  that  amount  of  care  is  called  or- 
dinary negligence.  In  each  case,  the  negligence,  whatever  epi- 
thet we  give  it,  is  failure  to  bestow  the  care  and  skill  which  the 
situation  demands;  and  hence  it  is  more  strictly  accurate  per- 
haps to  call  it  simply  "negligence."  And  this  seems  to  be  the 
tendency  of  moderij  authorities.  If  they  mean  more  than  this, 
and  seek  to  abolish  the  distinction  of  degrees  of  care,  skill,  and 
diligence  required  in  the  performance  of  various  duties  and 
the  fulfilment  of  various  contracts,  we  think  they  go  too  far; 
since  the  requirement  of  different  degrees  of  oare  in  different  sit- 
uations is  too  firmly  settled  and  fixed  in  the  law-  to  be  ignored 
or  changed.  The  compilers  of  the  French  Civil  Code  undertook 
to  abolish  these  distinctions  by  enacting  that  "every  act  what- 
ever of  man  that  causes  damage  to  another,  obliges  him  by  whose 
fault  it  happened  to  repair  it."  Toullier,  in  his  commentary 
on  the  code,  regards  this  as  a  happy  thought,  and  a  return  to 
the  law  of  nature.  But  such  an  iron  rule  is  too  regardless  of 
the  foundation  principles  of  human  duty,  and  must  often  ope- 
rate with  great  severity  and  injustice. 

In  the  case  before  us,  the  law,  in  the  absence  of  special  con- 
tract, fixes  the  degree  of  care  and  diligence  due  from  the  rail- 
road company  to  the  persons  carried  on  its  trains.  A  failure 
to  exercise  such  care  and  diligence  is  negligence.  It  needs  no 
epithet  properly  and  legally  to  describe  it.  If  it  is  against  the 
policy  of  the  law  to  allow  stipulations  which  will  relieve  the  com- 
pany from  the  exercise  of  that  care  and  diligence,  or  which,  in 
other  words,  will  excuse  them  for  negligence  in  the  performance 
of  that  duty,  then  the  company  remains  liable  for  such  negli- 
gence. The  question  whether  the  company  was  guilty  of  negli- 
gence in  this  case,  which  caused  the  injury  sustained  by  the 
plaintiff,  was  fairly  left  to  the  jury.  It  was  unnecessary  to  tell 
them  whether,  in  the  language  of  law  writers,  such  negligence 
would  be  called  gross  or  ordinary. 

The  conclusions  to  which  we  have  come  are — 

First.  That  a  common  carrier  cannot  lawfully  stipulate  for 
exemption  from  responsibility  when  such  exemption  is  not  just 
and  reasonable  in  the  eye  of  the  law. 

Secondly.  That  it  is  not  just  and  reasonable  in  the  eye  of 
the  law  for  a  common  carrier  to  stipulate  for  exemption  from 
responsibility  for  the  negligence  of  himself  or  his  servants. 

406 


MYNAKD  V.  SYEACUSE,  ETC.,  RAILKOAD  CO.  §§  103,  104 

Thirdly.  That  these  rules  apply  both  to  carriers  of  goods  and 
carriers  of  passengers  for  hire,  and  with  special  force  to  the 
latter. 

Fourthly.  That  a  drover  traveling  on  a  pass,  such  as  was 
given  in  this  case,  for  the  purpose  of  taking  care  of  his  stock 
on  the  train,  is  a  passenger  for  hire. 

These  conclusions  decide  the  present  case,  and  require  a  judg- 
ment of  affirmance.  We  purposely  abstain  from  expressing  any 
opinion  as  to  w^hat  would  have  been  the  result  of  our  judgment 
had  we  considered  the  plaintiff  a  free  passenger  instead  of  a 
passenger  for  hire, 
"Judgment  affirmed. 


^04.    MYNARD  V.  SYRACUSE,  ETC.,  RAILROAD  CO., 

71  N.  Y.  180;  27  Am.  R.  28. '  1877. 

Action  to  recover  from  a  common  carrier  for  the  loss  of  a 
steer  resulted  in  judgment  foi"  defendant. 

Church,  C.  J,  The  parties  stipulated  that  the  animal  was  lost 
by  reason  of  the  negligence  of  some  of  the  employees  of  the  de- 
fendant without  the  fault  of  the  plaintiff.  The  defense  rested 
solely  upon  exemption  from  liability  contained  in  the  contract 
of  shipment  by  which,  for  the  consideration  of  a  reduced  rate, 
the  plaintiff  agreed  to  "release  and  discharge  the  said  company 
from  all  claims,  demands  and  liabilities  of  every  kind  whatso- 
ever for  or  on  account  of,  or  connected  with,  any  damage  or 
injury  to  or  the  loss  of  said  stock,  or  any  portion  thereof,  from 
whatsoever  cause  arising." 

The  question  depends  upon  the  construction  to  be  given  to 
this  contract,  whether  the  exemption  ' '  from  whatever  cause  aris- 
ing" should  be  taken  to  include  a  loss  accruing  by  the  negligence 
of  the  defendants  or  its  servants.  The  language  is  general  and 
broad.  Taken  literally  it  would  include  the  loss  in  question, 
and  it  would  also  include  a  loss  accruing  from  an  intentional 
or  willful  act  on  the  part  of  servants.  It  is  conceded  that  the 
latter  is  not  included.  We  must  look  at  the  language  in  con- 
nection with  the  circumstances  and  determine  what  was  in- 
tended, and  whether  the  exemption  claimed  was  within  the 
contemplation  of  the  parties. 

The  defendant  was  a  common  carrier,  and  as  such  was  abso- 
lutely liable  for  the  safe  carriage  and  delivery  of  property  in- 
trusted to  its  care,  except  for  loss  or  injury  occasioned  by  the 

407 


§  104  LIABILITY  UNDEE  SPECIAL  CONTKACT. 

acts  of  God  or  public  enemies.  The  obligations  are  imposed  by 
law,  and  not  by  contract.  A  common  carrier  is  subject  to  two 
distinct  classes  of  liabilities — one  where  he  is  liable  as  an  insurer 
without  fault  on  his  part;  the  other,  as  an  ordinary  bailee  for 
hire,  when  he  is  liable  for  default  in  not  exercising  proper  care 
and  diligence ;  or,  in  other  words,  for  negligence.  General  words 
from,  whatever  cause  arising  may  well  be  satisfied  by  limiting 
them  to  such  extraordinary  liabilities  as  carriers  are  under  with- 
out fault  or  negligence  on  their  part. 

"When  general  words  may  operate  without  including  the  negli- 
gence of  the  carrier  or  his  servants,  it  will  not  be  presumed  that 
it  was  intended  to  include  it.  Every  presumptiop.  is  against  an 
intention  to  contract  for  immunity  for  not  exercising  ordinary 
diligence  in  the  transaction  of  any  business,  and  hence  the  gen- 
eral rule  is  that  contracts  will  not  be  so  construed,  unless  ex- 
pressed in  unequivocal  terms.  In  New  Jersey  Steam  Navigation 
Co.  V.  Merchants'  Bank,  6  How.  (U.  S.)  344,  a  contract  that 
the  carriers  are  not  responsible  in  any  event  for  loss  or  dam- 
age, was  held  not  intended  to  exonerate  them  from  liability  for 
want  of  ordinary  care.  Nelson,  J.,  said:  "The  language  is 
general  and  broad,  and  might  very  well  comprehend  every  de- 
scription of  risk  incident  to  the  shipment.  But  we  think  it 
would  be  going  further  than  the  intent  of  the  parties  upon  any 
fair  and  reasonable  construction  of  the  agreement,  were  we  to 
regard  it  as  stipulating  for  wilful  misconduct,  gross  negligence, 
or  want  of  ordinary  care,  either  in  the  seaworthiness  of  the  ves- 
sel, her  proper  equipments  and  furniture,  or  in  her  management 
by  the  master  and  hands."  This  rule  has  been  repeatedly  fol- 
lowed in  this  State.  In  Alexander  v.  Green,  7  Hill  533,  the  stip- 
ulation was  to  tow  plaintiff's  canal  boat  from  New  York  to  Al- 
bany at  the  risk  of  the  master  and  owners,  and  the  Court  of  Er- 
rors reversed  a  judgment  of  the  Supreme  Court  with  but  a 
single  dissenting  vote,  and  decided  that  the  language  did  not  in- 
clude a  loss  occasioned  by  the  negligence  of  the  defendants  or 
their  servants.  In  one  of  several  opinons  delivered  by  members 
of  the  court,  it  was  said,  in  respect  to  the  claim  for  immunity  for 
negligence :  "To  maintain  a  proposition,  m  extravagant  as  this 
would  appear  to  be,  the  stipulation  of  the  parties  ought  to  be 
most  clear  and  explicit,  showing  that  they  comprehend  in  their 
arrangement  the  case  that  actually  occurred." 

Wells  V.  Steam  Nav.  Co.,  8  N.  Y.  375,  expressly  approved  of 
the  decision  of  Alelxander  v.  Greene,  and  reiterated  the  same 
principle.  Gardner,  J.,  in  speaking  of  that  case,  said:  "We 
held,  then,  if  a  party  vested  with  a  temporary  control  of  an- 
other's property  for  a  special  purpose  of  this  sort  would  shield 

408 


MYNAKD  V.  SYEACUSE,  ETC.,  EAILROAD  CO.  §  104 

himself  from  responsibility  on  account  of  the  gross  neglect  of 
himself  or  his  servants,  he  must  show  his  immunity  on  the  face 
of  his  agreement;  and  that  a  stipulation  so  extraordinary,  so 
contrary  to  usage  and  the  general  understanding  of  men  of 
business,  would  'not  be  implied  from  a  general  expression  to 
which  effect  might  otherwise  be  given." 

So,  in  the  Steinweg  Case,  43  N.  Y.  123,  3  Am.  R.  673,  the  con- 
tract released  the  carrier  "from  damage  or  loss  to  any  article 
from  or  by  fire  or  explosion  of  any  kind,"  and  this  court  held 
that  the  release  did  not  include  a  loss  by  fire  occasioned  by  the 
negligence  of  the  defendant ;  and,  in  the  ]\Iagnin  Case,  still  more 
recently  decided  by  this  court  (56  N.  Y.  168),  the  contract  with 
the  express  company  contained  the  stipulation  "and,  if  the  value 
of  the  property  above  described  is  not  stated  by  the  shipper,  the 
holder  thereof  will  not  demand  of  the  Adams  Express  Com- 
pany a  sum  exceeding  fifty  dollars  for  the  loss  or  detention  of, 
or  damage  to,  the  property  aforesaid." 

It  was  held,  reversing  the  judgment  below,  that  the  stipnlation 
did  not  cover  a  loss  accruing  through  negligence,  Johnson,  J., 
in  the  opinion,  saying:  "But  the  contract  will  not  be  deemed 
to  except  losses  occasioned  by  the  carrier 's  negligence,  unless  that 
he  expressly  stipulated. ' '  In  each  of  these  eases,  the  language  of 
the  contract  was  sufficiently  broad  to  include  losses  occasioned 
by  ordinary  or  gross  negligence,  but  the  doctrine  is  repeated 
that,  if  the  carrier,  asks  for  immunity  for  his  wrongful  acts,  it 
must  be  expressed,  and  that  general  words  will  not  be  deemed 
to  have  been  intended  to  relieve  him  from  the  consequences  of 
such  acts. 

These  authorities  are  directly  in  point,  and  they  accord  with 
a  wise  public  policy,  by  which  courts  should  be  guided  in  the 
construction  of  contracts  designed  to  relieve  common  carriers 
from  obligations  to  exercise  care  and  diligence  in  the  prosecu- 
tion of  their  business,  which  the  law  imposes  upon  ordinary 
bailees  for  hire  engaged  in  private  business.  In  the  recent  case 
of  Lockwood  V.  Railroad  Co.,  17  Wall.  357,  the  Supreme  Court 
of  the  United  States  decided  that  a  cxxmrnon  carrier  cannot  law- 
fully stipulate  for  exemption  from  responsibility  for  the  negli- 
gence of  himself  or  his  servants.  If  we  felt  at  liberty  to  review 
the  question,  the  reasoning  of  Justice  Bradley  in  that  case  would 
be  entitled  to  serious  consideration ;  but  the  right  thus  to  stipu- 
late has  been  so  repeatedly  affirmed  by  this  court,  that  the  ques- 
tion cannot  with  propriety  be  regarded  as  an  open  one  in  this 
State.  8  N.  Y.  375 ;  ,11  id.  485 ;  24  id.  181-196 ;  25  id.  442 ;  42 
id.  212 ;  49  id.  263 ;  51  id.  61. 

The  remedy  is  "with  the  legislature,  if  remedy  is  needed.  But, 

409 


§  104  LIABILITY  UNDEE  SPECIAL  CONTRACT. 

Yipon  the  question  involved  here,  it  is  correctly  stated  in  that 
case,  that  "a  review  of  the  cases  decided  by  the  courts  of  New 
York  shows  that,  though  they  have  carried  the  power  of  the 
common  carrier  to  make  special  contracts  to  the  extent  of  enab- 
ling him  to  exonerate  himself  from  the  effects  of  even  gross 
negligence,  yet  that  this  effect  has  never  been  given  to  a  contract 
general  in  its  terms."  Such  has  been  the  uniform  course  of 
decisions  in  this  and  most  of  the  other  States,  and  public  policy 
demands  that  it  should  not  be  changed.  It  cannot  be  said  that 
parties,  in  making  such  contracts,  stand  on  equal  terms.  The 
shipper,  in  most  cases,  from  motives  of  convenience,  necessity 
or  apprehended  injury,  feels  obliged  to  accept  the  terms  pro- 
posed by  the  carrier,  and  practically  the  contract  is  made  by 
one  party  only,  and  should,  therefore,  be  construed  most  strongly 
against  him;  and  especially  should  he  not  be  relieved  from  the 
consequences  of  his  own  wrongful  acts  under  general  words  or 
by  implication. 

There  was  a  period  when  the  courts  of  England  were  inclined 
to  relax  this  rule,  and  this  led  to  the  adoption  of  an  act  of 
Parliament  on  this  subject,  under  which  the  courts  have  since 
acted.    See  10  House  of  Lords  Cases,  473. 

It  is  argued  that  the  rule  does  not  apply  to  the  carriage  of  ani- 
mals ;  that,  in  respect  to  such  property,  the  common-law  liabili- 
ties of  common  carriers  do  not  attach;  that  the  carrier  is  only 
liable  for  negligence,  and  hence  that  the  stipulation  can  apply 
to  nothing  else. 

There  might  be  some  force  in  this  point,  if  the  position  that 
carriers  of  animals  are  only  liable  for  negligence  or  miscondtict 
is  correct.  But  that  positiori  cannot  be  maintained.  The  liabil- 
ity of  carriers  of  animals  is  modified  only  so  far  as  the  cause  of 
damage  for  which  recompense  is  sought,  is  a  consequence  of  the 
conduct  or  propensities  of  the  animals  undertaken  to  be  carried. 
In  other  respects,  the  common-law  responsibilities  of  the  car- 
rier will  attach.  This  was  expressly  held  in  Clarke  v.  Rochester 
&  S.  E.  R.  Co.,  14  N.  Y.  573,  67  Am.  D.  205,  Denio,  J.,  said: 
"But  the  rule  which  would  exempt  the  carrier  altogether  from 
accidents  arising  out  of  the  peculiar  character  of  the  freight, 
irrespective  of  the  question  of  negligence,  would  be  equally  un- 
reasonable. It  would  relieve  the  carrier  altogether  from  those 
necessary  precautions  which  any  person  becoming  the  bailee  for 
hire  of  animals  is  bound  to  exercise;  and  the  owner,  where  he 
did  not  himself  assume  the  duty  of  seeing  to  them,  would  be 
wholl}^  at  the  mercy  of  the  carrier.  The  nature  of  the  case  does 
not  call  for  any  such  relaxation  of  the  rule ;  and,  considering  the 
law  of  carriers  to  be  established  upon  consideration  of  sound 

410 


MYNAED  V.  SYRACUSE,  ETC.,  RAILROAD  CO.  §  104 

policy,  we  would  not  depart  from  it,  except  where  the  reason 
upon  which  it  is  based  wholly  fails,  and  then  no  further  than 
the  cause  for  the  exemption  requires."  The  case  of  Palmer  v. 
Railway  Co.,  4  Mees.  &  AVels.  749,  is  cited,  where  the  same 
principle  is  decided.  Aninuils  may  die  of  fright,  by  refusing  to 
eat,  or  break  from  their  fastenings,  and  kill  themselves,  although 
every  proper  precaution  was  used ;  but  there  may  be  many  acci- 
dents producing  loss  or  injury  to  animals  which  are  not  attrib- 
utable to  acts  of  God,  and  which  were  not  caused  by  the  peculiar 
character  of  the  property.  By  the  act  of  God  is  meant  some- 
thing which  operates  without  any  aid  or  interference  from  man. 
Merritt  v.  Earle,  29  N.  Y.  115,  86  Am.  D.  292.  In  that  case  it 
Avas  held  that  the  carrier  was  liable  for  the  value  of  a  span  of 
horses  lost  by  the  sinking  of  a  steamboat,  caused  by  coming  in 
contact  with  the  mast  of  a  sloop  which  had  been  sunk  in  a  squall 
two  days  before.  The  court  decided  that  sinking  the  steam- 
boat was  not  caused  by  the  act  of  God,  and  that  the  sinking  of 
the  sloop,  although  by  the  act  of  God,  was  too  remote,  and  many 
accidents  might  happen  producing  loss  to  animals  for  which  the 
carrier  would  be  liable,  although  no  fault  or  negligence  could  be 
imputed ;  and  in  respect  to  such,  the  common-law  liability  would 
attach.  Angell  on  Carriers,  p.  ISO,  lays  down  the  same  rule. 
The  sanae  qualification  of  liability  applies  to  all  property. 

The  carrier  is  excused  ^rom  liability  for  loss  caused  by  inher- 
ent infirmity  or  tendency  to  decay.  It  has  been  held  that  a  car- 
rier is  not  responsible  for  the  evaporation  of  liquids,  nor  for  the 
diminution  of  molasses,  caused  by  the  oozing  through  vent  holes 
necessary  to  prevent  th&  bursting  of  barrels  (Angell  on  Carriers, 
§  211,  and  cases  cited)  ;  and  exemptions  from  liability  for  loss  by 
inherent  qualities  of  animals,  rests  upon  the  same  principle.  Be- 
yond this  the  common-law  liabilities  exist  against  the  carrier  of 
animals  the  same  as  the  carrier  of  other  property,  and  the  clause 
in  the  contract  can,  therefore,  operate  in  many  cases  where  neg- 
ligence cannot  be  imputed. 

In  Massachusetts  in  Smith  v.  R.  R.  Co.,  12  Allen,  531,  the 
court  says:  "The  common-law  liability  of  a  carrier  for  the 
delivery  of  live  animals  is  the  same  as  thaY  for  the  delivery  of 
merchandise.  Upon  undertaking  their  transportation  he  as- 
sumes the  obligation  to  deliver  them  safely  against  all  con- 
tingencies, except  such  as  would  excuse  the  non-delivery  of 
other  property."  The  qualification  above  referred  to,  excusing 
the  carrier  from  liability  of  loss  occasioned  by  the  nature  and 
character  of  the  property,  is  recognized.  The  qualification  or 
exception,  as  before  stated,  is  applicable  to  all  property,  and  does 
not  affect  the  common-law  liabilities  to  any  greater  extent  than 

411 


§§  104,  105  LIABILITY  UNDEK  SPECIAL  CONTKACT. 

in  respect  to  otlier  property,  except  that  the  instances  may  bn 
more  numerous  where  the  carrier  will  be  excused.  In  Angell  on 
Carriers,  §  214,  it  is  said:  "Such  a  case  would  seem  to  be  anal- 
ogous to  the  case  of  loss  of  merchandise  owing  to  some  inherent 
defect  which  caused  the  destruction  of  it  while  in  transit."  As 
well  might  carriers  be  exempted  from  common-law  liabilities  for 
loss  of  inanimate  property  as  for  animals,  if  immunity  from 
loss  from  inherent  defects,  or  from  the  nature  and  character  of 
the  property,  will  produce  that  result. 

The  only  authority  seeming  to  favor  the  position  of  the  re- 
spondent is  in  Cragin  v.  N.  Y.  C.  R.  R.  Co.,  51  N.  Y.  61,  10  Am. 
R.  559.  The  loss  of  the  hogs  in  that  case  was  caused  by  heat, 
and  the  negligence  attributed  was  in  not  cooling  them  off  with 
water.  We  do  not  think,  under  the  peculiar  stipulation,  and  the 
character  of  the  property  in  that  case,  that  it  is  in  conflict  within 
the  views  before  expressed. 

The  judgment  of  the  General  Term  must  be  reversed,  and  that 
of  the  county  court  affirmed. 

All  concur,  except  Andrews,  J.,  taking  no  part ;  Folgee,  and 
Miller,  JJ.,  absent. 

Judgment  accordingly. 


7  105.    HART  V.  PENNSYLVANIA  RAILROAD  CO., 

112  JJ.  S.  331,  5  8.  Ct.  B.  151.     1884. 

Action  to  recover  $19,800  for  the  death  of  one  race  horse  and 
the  injury  of  four  others  through  the  negligence  of  defendant 
in  transporting  them.  The  court  below  excluded  evidence  that 
the  horse  killed  was  worth  $15,000  and  the  others  from  $3,000  to 
$5,000  each.     Verdict  for  plaintiff  for  $1,200. 

Blatchford,  J.  It  is  contended  for  the  plaintiff  that  the  bill 
of  lading  does  not  purport  to  limit  the  liability  of  the  defendant 
to  the  amounts  stated  in  it,  in  the  event  of  loss  through  the 
negligence  of  the  defendant.  But  we  are  of  opinion  that  the 
contract  is  not  susceptible  of  that  construction.  The  defendant 
receives  the  property  for  transportation  on  the  terms  and  con- 
ditions expressed,  which  the  plaintiff  accepts,  "as  just  and  rea- 
sonable." The  first  paragraph  of  the  contract  is  that  the  plain- 
tiff is  to  pay  the  rate  of  freight  expressed,  "on  the  condition 
that  the  carrier  assumes  a  liability  on  the  stock  to  the  extent  of 
the  following  agreed  valuation :  if  horses  or  mules,  not  ex- 
ceeding two  hundred  dollars  each.  .  .  .  If  a  chartered  car, 
on  the  stock  and  contents  in  same,  twelve  hundred  dollars  for 

412 


HART  V.  PENN.  EAILEOAD  CO.  §  105 

the  car  load. ' '  Then  follow  in  the  first  paragraph  these  words : 
' '  But  no  carrier  shall  be  liable  for  the  acts  of  the  animals  them- 
selves, or  to  each  other,  such  as  biting,  kicking,  goring  or  smoth 
ering,  nor  for  loss  or  damage  arising  from  condition  of  the  ani- 
mals themselves,  which  risks,  being  beyond  the  control  of  the  com- 
pany, are  hereby  assumed  by  the  owner,  and  the  carrier  released 
therefrom. ' '  This  statement  of  the  fact  that  the  risks  from  the 
acts  and  condition  of  the  horses  are  risks  beyond  the  control  of 
the  defendant,  and  are,  therefore,  assumed  by  the  plaintiff,  shows, 
if  more  were  needed  than  the  other  language  of  the  contract,  that 
tlie  ri&ks  and  liability  assumed  by  the  defendant  in  the  remainder 
of  the  same  paragraph  are  those  not  beyond,  but  within,  the 
control  of  the  defendant,  and,  therefore,  apply  to  loss  through 
the  negligence  of  the  defendant. 

It  must  be  presumed  from  the  terms  of  the  bill  of  lading,  and 
without  any  evidence  on  the  subject,  and  especially  in  the  ab- 
sence of  any  evidence  to  the  contrary,  that,  as  the  rate  of  freight 
expressed  is  stated  to  be  on  the  condition  that  the  defendant  as- 
sumes a  liability  to  the  extent  of  the  agreed  valuation  named,  the 
rate  of  freight  is  graduated  by  the  valuation.  Especially  is  this 
so,  as  the  bill  of  lading  is  what  its  heading  states  it  to  be,  "a 
limited  liability  live-stock  contract,"  and  is  confined  to  live- 
stock. Although  the  horses,  being  race-horses,  may,  aside  from 
the  bill  of  lading,  have  been  of  greater  real  value  than  that  spe- 
cified in  it,  whatever  passed  between  the  parties  before  the  bill 
of  lading  was  signed  was  merged  in  the  valuation  it  fixed;  and 
it  is  not  asserted  that  the  plaintiff  named  any  value,  greater  or 
less,  otherwise  than  as  he  assented  to  the  value  named  in  the  bill 
of  lading,  by  signing  it.  The  presumption  is  conclusive  that, 
if  the  lial^ility  had  been  assumed  on  a  valuation  as  great  as  that 
now  alleged,  a  higher  rate  of  freight  would  have  been  charged. 
The  rate  of  freight  is  indissolubly  bound  up  with  the  valuation. 
If  the  rate  of  freight  named  was  the  only  one  offered  by  the 
defendant,  it  was  because  it  was  a  rate  measured  by  the  valua- 
tion expressed.  If  the  valuation  was  fixed  at  that  expressed, 
when  the  real  value  was  larger,  it  was  because  the  rate  of  freight 
named  was  measured  by  the  low  valuation.  The  plaintiff  cannot 
claim,  a  higher  valuation,  on  the  agreed  rate  of  freight. 

It  is  further  contended  by  the  plaintiff,  that  the  defendant 
was  forbidden,  by  public  policy,  to  fix  a  limit  for  its  liability 
for  a  loss  by  negligence,  at  an  amount  less  than  the  actual  loss 
by  such  negligence.  As  a  minor  proposition,  a  distinction  is 
sought  to  be  drawn  between  a  case  Vv^here  a  shipper,  on  require- 
ment, states  the  value  of  the  property,  and  a  rate  of  freight  is 
fixed  accordingly,  and  the  present  case.     It  is  said,  that,  while 

413 


§  105  LIABILITY  UNDEE  SPECIAL  CONTEACT. 

in  the  former  ease  the  shipper  may  be  confined  to  the  value  he 
so  fixed,  in  the  event  of  a  loss  by  negligence,  the  same  rule  does 
not  apply  to  a  case  where  the  valuation  inserted  in  the  contract 
is  not  a  valuation  previously  named  by  the  shipper.  But  we  see 
no  sound  reason  for  this  distinction.  The  valuation  named  was 
the  ''agreed  valuation,"  the  one  on  which  the  minds  of  the 
parties  met,  however  it  came  to  be  fixed,  and  the  rate  of  freight 
was  based  on  that  valuation,  and  was  fixed  on  condition  that 
such  was  the  valuation,  and  that  the  liability  should  go  to  that 
extent  and  no  further. 

We  are,  therefore,  brought  back  to  the  main  question.  It  is 
the  law  of  this  court,  that  a  common  carrier  may,  by  special 
contract,  limit  his  common-law  liability;  but  that  he  cannot 
stipulate  for  exemption  from  the  consequences  of  his  own  negli- 
gence or  that  of  his  servants.  New  Jersey  Steam  Nav.  Co.  v. 
Merchants'  Bank,  6  How.  344;  York  Co.  v.  Central  R.  R.  Co.,  3 
Wall.  107;  Railroad  Co.  v.  Lockwood,  17  Wall.  357;  Express  Co. 
V.  Caldwell,  21  AVall.  264;  Railroad  Co.  v.  Pratt,  22  Wall.  123; 
Bank  of  Kentucky  v.  Adams  Express  Co.,  93  U.  S.  174 ;  Railway 
Co.  V.  Stevens,  95  U.  S.  655. 

In  York  Co.  v.  Central  Railroad,  3  Wall.  107,  a  contract  was 
upheld  exempting  a  carrier  from  liability  for  loss  by  fire,  the 
fire  not  having  occurred  through  any  want  of  due  care  on  his 
part.  The  court  said,  that  a  common  carrier  may  "prescribe 
regulations  to  protect  himself  against  imposition  and  fraud,  and 
fix  a  rate  of  charges  proportionate  to  the  magnitude  of  the  risks 
he  may  have  to  encounter. ' ' 

In  Railroad  Co.  v.  Lockwood,  17  Wall.  357,  the  following  prop- 
ositions were  laid  down  by  this  court:  (1)  A  common  carrier 
cannot  lawfully  stipulate  for  exemption  from  responsibility 
when  such  exemption  is  not  just  and  reasonable,  in  the  eye  of 
the  law;  (2)  It  is  not  just  and  reasonable  in  the  eye  of  the  law, 
for  a  common  carrier  to  stipulate  for  exemption  from  responsi- 
bility for  the  negligence  of  himself  or  his  servants;  (3)  These 
rules  apply  both  to  carriers  of  goods  and  to  carriers  of  passen- 
gers for  hire,  and  with  special  force  to  the  latter.  The  basis 
of  the  decision  was,  that  the  exemption  was  to  have  applied  to 
it  the  test  of  its  justness  and  reasonable  character.  It  was  said, 
that  the  contracts  of  the  carrier  "must  rest  upon  their  fairness 
and  reasonableness";  and  that  it  was  just  and  reasonable  that 
carriers  should  not  be  responsible  for  losses  happening  by  sheer 
accident,  or  chargeable  for  valuable  articles  liable  to  be  dam- 
aged, unless  apprised  of  their  character  or  value.  That  case  was 
one  of  a  drover  traveling  on  a  stock  train  on  a  railroad,  to  look 
after  his  cattle,  and  having  a  free  pass  for  that  purpose,  who 

414 


HAET  V.  PENN.  EAILEOAD  CO.  §  105 

had  signed  an  agreement  taking  all  risk  of  injury  to  his  cattle 
and  of  personal  injury  to  himself,  and  who  was  injured  by  the 
negligence  of  the  railroad  company  or  its  servants. 

In  Express  Co.  v.  Caldwell,  21  Wall.  264,  this  court  held,  that 
an  agreement  made  by  an  express  company,  a  common  carrier 
in  the  habit  of  carrying  small  packages,  that  it  should  not  be  held 
liable  for  any  loss  or  damage  to  a  package  delivered  to  it,  unless 
claim  should  be  made  therefor  within  ninety  days  from  its  de- 
livery to  the  company,  was  an  agreement  which  the  company 
could  rightfully  make.  The  court  said:  "It  is  now  the  settled 
law,  that  the  responsibility  of  a  common  carrier  may  be  limited 
by  an  express  agreement  made  with  his  employer  at  the  time 
of  his  accepting  goods  for  transportation,  provided  the  limita- 
tion be  such  as  the  law  can  recognize  as  reasonable  and  not  in- 
consistent with  sound  public  policy."  It  was  held  that  the 
stipulation  as  to  the  time  of  making  a  claim  was  reasonable  and 
intrinsically  just,  and  could  not  be  regarded  as  a  stipulation  for 
exemption  from  responsibility  for  negligence,  because  it  did  not 
relieve  the  carrier  from  any  obligation  to  exercise  diligence,  fidel- 
ity and  care. 

On  the  other  hand,  in  Bank  of  Kentucky  v.  Adams  Express 
Co.,  93  U.  S.  174,  it  was  held  that  a  stipulation  by  an  express 
company  that  it  should  not  be  liable  for  loss  by  fire  could  not 
be  reasonably  construed  as  exempting  it  from  liability  for  loss 
by  fire  occurring  through  the  negligence  of  a  railroad  company 
which  it  had  employed  as  a  carrier. 

To  the  views  announced  in  these  cases  we  adhere.  But  there 
is  not  in  them  any  adjudication  on  the  particular  question  now 
before  us.  It  may,  however,  be  disposed  of  on  principles  which 
are  well  established  and  which  do  not  conflict  with  any  of  the 
rulings  of  this  court.  As  a  general  rule,  and  in  the  absence  of 
fraud  or  imposition,  a  common  carrier  is  answerable  for  the  loss 
of  a  package  of  goods  though  he  is  ignorant  of  its  contents,  and 
though  its  contents  are  ever  so  valuable,  if  he  does  not  make  a 
special  acceptance.  This  is  reasonable,  because  he  can  always 
guard  himself  by  a  special  acceptance,  or  by  insisting  on  being 
informed  of  the  nature  and  value  of  the  articles  before  receiving 
them.  If  the  shipper  is  guilty  of  fraud  or  imposition,  b}--  mis- 
representing the  nature  or  value  of  the  articles,  he  destroys  his 
claim  to  indemnity,  because  he  has  attempted  to  deprive  the  car- 
rier of  the  right  to  be  compensated  in  proportion  to  the  value 
of  the  articles  and  the  consequent  risk  assumed,  and  what  he 
has  done  has  tended  to  lessen  the  vigilance  the  carrier  would 
otherwise  have  bestowed.  2  Kent's  Comm.  603,  and  cases  cited; 
Relf  V.  Rapp,  3  Watts.  &  Serg.  (Pa.)  21,  37  Am.  D.  528;  Dunlap 

415 


§  105  LIABILITY  UNDER  SPECIAL  CONTRACT. 

V.  International  Steamboat  Co.,  98  Mass.  371 ;  Railroad  Co.  v. 
Fraloff,  100  U.  S.  24.  This  qualification  of  the  liability  of  the 
carrier  is  reasonable,  and  is  as  important  as  the  rule  which  it 
qualifies.  There  is  no  justice  in  allowing  the  shipper  to  be  paid 
a  large  value  for  an  article  which  he  has  induced  the  carrier  to 
take  at  a  low  rate  of  freight  on  the  assertion  and  agreement  that 
its  value  is  a  less  sum  than  that  claimed  after  a  loss.  It  is  just 
to  hold  the  shipper  to  his  agreement,  fairly  made,  as  to  value, 
even  where  the  loss  or  injury  has  occurred  through  the  negli- 
gence of  the  carrier.  The  effect  of  the  agreement  is  to  cheapen 
the  freight  and  secure  the  carriage,  if  there  is  no  loss;  and  the 
effect  of  disregarding  the  agreement,  after  a  loss,  is  to  expose 
the  carrier  to  a  greater  risk  than  the  parties  intended  he  should 
assume.  The  agreement  as  to  value,  in  this;  case,  stands  as  if 
the  carrier  had  asked  the  value  of  the  horses,  and  had  been  told 
by  the  plaintiff  the  sum  inserted  in  the  contract. 

The  limitation  as  to  value  has  no  tendency  to  exempt  from 
liability  for  negligence.  It  does  not  induce  want  of  care.  It  ex- 
acts from  the  carrier  the  measure  of  care  due  to  the  value  agreed 
on.  .  The  carrier  is  bound  to  respond  in  that  value  for  negli- 
gence. The  compensation  for  carriage  is  based  on  that  value. 
The  shipper  is  estopped  from  saying  that  the  value  is  greater. 
The  articles  have  no  greater  value,  for  the  purposes  of  the  con- 
tract of  transportation,  between  the  parties  to  that  contract. 
The  carrier  must  respond  for  negligence  up  to  that  value.  It  is 
just  and  reasonable  that  such  a  contract,  fairly  entered  into,  and 
where  there  is  no  deceit  practised  on  the  shipper,  should  be 
upheld.  There  is  no  violation  of  public  policy.  On  the  contrary 
it  would  be  unjust  and  unreasonable,  and  would  be  repugnant 
to  the  soundest  principles  of  fair  dealing  and  of  the  freedom 
of  contracting,  and  thus  in  conflict  with  public  policy,  if  a  ship- 
per should  be  allowed  to  reap  the  benefit  of  the  contract  if  there 
is  no  loss,  and  to  repudiate  it  in  case  of  loss. 

The  principle  is  not  a  new  one.  In  Gibbon  v.  Paynton,  4 
Burrows,  2298,  the  sum  of  £100  was  hidden  in  some  hay  in  an 
old  mail-bag  and  sent  by  a  coach  and  lost.  The  plaintiff  knew 
of  a  notice  by  the  proprietor  that  he  would  not  be  answerable 
for  money  unless  he  knew  what  it  was,  but  did  not  apprise  the 
pi'oprietor  that  there  was  money  in  the  bag.  The  defence  was 
upheld,  Lord  Mansfield  saying:  "A  common  carrier,  in  re- 
spect of  the  premium  he  is  to  receive  runs  the  risque  of  the 
goods,  and  must  make  good  the  loss,  though  it  happen  without 
any  fault  in  him,  the  reward  making  him  answerable  for  their 
safe  delivery.  His  warranty  and  insurance  is  in  respect  of  the 
reward  he  is  to  receive,  and  the  reward  ought  to  be  proportion- 

416 


HART  V.  PENN.  EAILEOAD  CO.  §  105 

able  to  the  risque.  If  he  makes  a  greater  warranty  and  insur- 
ance, he  will  take  greater  care,  use  more  caution,  and  be  at  the 
expense  of  more  guards  or  other  methods  of  security ;  and,  there- 
fore, he  ought,  in  reason  and  justice,  to  have  a  greater  reward." 
To  the  same  effect  is  Batson  v.  Donovan,  4  B.  &  A.  21. 

The  subject-matter  of  a  contract  may  be  valued,  or  the  dam- 
ages in  ease  of  a  breach  may  be  liquidated  in  advance.  In  the 
present  case,  the  plaintiff  accepted  the  valuation  as  "just  and 
reasonable.""  The  bill  of  lading  did  not  contain  a  valuation  of 
all  animals  at  a  fixed  sum  for  each,  but  a  graduated  valuation 
according  to  the  nature  of  the  animal.  It  does  not  appear  that 
an  unreasonable  price  would  have  been  charged  for  a  higher 
valuation. 

The  decisions  in  this  country  are  at  variance.  The  rule  which 
we  regard  as  the  proper  one  in  the  case  at  bar  is  supported  in 
Newburger  v.  Howard,  6  Philadelphia  Rep.  174;  Squire  v.  New 
York  Cent.  R.  R.  Co.,  98  Mass.  239,  93  Am.  D.  162 ;  Hopkins  v. 
Westcott,  6  Blatchford,  64;  Belger  v.  Dinsmore,  51  N.  Y.  166, 
10  Am.  R.  575 ;  Oppenheimer  v.  U.  S.  Express  Co.,  69  111.  62,  18 
Am.  R.  596 ;  T^Iagnin  v.  Dinsmore,  56  N.  Y.  168,  and  62  N.  Y.  35, 
20  Am.  R.  442,  and  70  N.  Y.  410,  26  Am.  R.  608 ;  Earnest  v.  Ex- 
press Co.,  1  "Woods,  573;  Elkins  v.  Empire  Transportation  Co., 
81  Penn.  St.  315 ;  South  &  North  Alabama  R.  R.  Co.  v.  Henlein, 
52  Ala.  606,  23  Am.  R.  578 ;  Same  v.  Same,  56  Id.  368 ;  Muser  v. 
Holland,  17  Blatchford,  412;  Harvey  v.  Terre  Haute  R.  R.  Co., 
74  Missouri,  538;  and  Graves  v.  Lake  Shore  &  M.  S.  R.  R.  Co., 
137  ]\Iass.  33,  50  Am.  R.  282,  The  contrary  rule  is  sustained  in 
Southern  Express  Co.  v.  Moon,  39  Miss.  822 ;  The  City  of  Nor- 
wich, 4  Ben.  271 ;  United  States  Express  Co.  v.  Backman.  28  Ohio 
St.  144;  Black  v.  Goodrich  Transportation  Co.,  55  Wis.  319,  13  N. 
W.  R.  244,  42  Am.  R.  713 ;  Chicago,  St.  Louis  &  N.  0.  R.  R.  Co.  v. 
Abels,  60  ]\riss.  1017 ;  Kansas  City  etc.  Railroad  Co.  v.  Simpson, 
30  Kan.  645,  2  Pac.  R.  821,  46  Am.  R.  104;  and  IMoulton  v.  St. 
Paul  etc.  R.  R.  Co.,  31  Minn.  85,  16  N.  W.  R.  497,  47  Am.  R.  781. 
We  have  given  consideration  to  the  views  taken  in  these  cases, 
but  are  unable  to  concur  in  their  conclusions.  Applying  to  the 
case  at  hand  the  proper  test  to  be  applied  to  every  limitation  of 
the  common-law  liability  of  a  carrier — its  just  and  reasonable 
character — we  have  reached  the  result  indicated.  In  Great 
Britain,  a  statute  directs  this  test  to  be  applied  1\y  the  courts. 
The  same  rule  is  the  proper  one  to  be  applied  in  this  country,  in 
the  absence  of  any  statute. 

As  relating  to  the  question  of  the  exemption  of  a  carrier  from 
liability  beyond  a  declared  value,  reference  may  be  made  to 
section  4281  of  the  Revised  Statutes  of  the  United  States  (a  re- 

27  417 


§§  105,  J06  LIABILITY  UNDER  SPECIAL  CONTEACT. 

enactment  of  section  69  of  the  act  of  February  28,  1871,  ch.  100, 
16  Stat.  458),  which  provides,  that  if  any  shipper  of  certain 
enumerated  articles,  which  are  generally  articles  of  large  value 
in  small  bulk,  "shall  lade  the  same,  as  freight  or  baggage,  on 
any  vessel,  without  at  the  time  of  such  lading  giving  to  the  mas- 
ter, clerk,  agent,  or  owner  of  such  vessel  receiving  the  same,  a 
written  notice  of  the  true  character  and  value  thereof,  and  hav- 
ing the  same  entered  on  the  bill  of  lading  therefor,  the  master 
and  owner  of  such  vessel  shall  not  be  liable  as  carriers  thereof  in 
any  form  or  manner,  nor  shall  any  such  master  or  owner  be 
liable  for  any  such  goods  beyond  the  value  and  according  to  the 
character  thereof  so  notified  and  entered."  The  principle  of 
this  statute  is  in  harmony  with  the  decision  at  which  we  have 
arrived. 

The  plaintiff  did  not,  in  the  course  of  the  trial,  or  by  any  re- 
quest to  instruct  the  jury,  or  by  any  exception  to  the  charge, 
raise  the  point  that  he  did  not  fully  understand  the  terms  of 
the  bill  of  lading,  or  that  he  was  induced  to  sign  it  by  any  fraud 
or  under  any  misapprehension.  On  the  contrary,  he  offered  and 
read  in  evidence  the  bill  of  lading,  as  evidence  of  the  contract 
on  which  he  sued. 

The  distinct  ground  of  our  decision  in  the  case  at  bar  is,  that 
where  a  contract  of  the  kind,  signed  by  the  shipper,  is  fairly 
made,  agreeing  on  the  valuation  of  the  property  carried,  with 
the  rate  of  freight  based  on  the  condition  that  the  carrier  as- 
sumes liability  only  to  the  extent  of  the  agreed  valuation,  even 
in  case  of  loss  or  damage  by  the  negligence  of  the  carrier,  the 
contract  will  be  upheld  as  a  proper  and  lawful  mode  of  securing 
a  due  proportion  between  the  amount  for  which  the  carrier  may 
be  responsible  and  the  freight  he  receives,  and  of  protecting  him- 
self against  extravagant  and  fanciful  valuations.  Squire  v. 
NeAv  York  Cent.  R.  R.  Co.,  98  Mass.  239,  245,  93  Am.  D.  162,  and 
cases  there  cited. 

There  was  no  error  in  excluding  the  evidence  offered,  or  in 
the  charge  to  the  jury,  and  the  judgment  of  the  Circuit  Court 
is  affirmed.  ^n 

106.     MOULTON  V.  ST.  PAUL,  MINNEAPOLIS  &  MANI- 
TOBA RAILWAY  CO., 

31  Minn.  85;  47  Am.  B.  781.     1883. 

Action  for  the  value  of  horses  lost  through  the  negligence 
of  the  carrier.  Plaintiff  secured  a  verdict  for  full  value  of 
horses. 

418 


MOULTON  V,  ST.  P.,  M.  &  M.  KY.  CO.  §  106 

Dickinson,  J.  The  plaintiffs  shipped  two  ear-loads  of  horses 
at  St.  Paul,  over  defendant's  line  of  road,  to  points  in  Dakota. 
Two  of  the  horses  died  by  reason  of  prolonged  exposure  to  cold 
weather,  as  is  claimed,  caused  by  defendant's  negligent  deten- 
tion of  the  train  during  transportation.  The  action  is  for  the 
recovery  of  the  value  of  these  two  horses,  which  appears  to  have 
been  $200  each.  For  the  purposes  of  this  appeal,  we  are  to 
consider  the  negligence  of  the  defendant  as  established,  and  are 
to  determine  whether  the  defendant  is  liable  for  its  negligence, 
and  the  measure  or  extent  of  its  liability  under  the  contract 
made  by  the  parties. 

The  contract  under  which  the  property  was  shipped,  and 
which  was  executed  by  both  plaintiffs  and  defendant,  contained 
the  provisions  that  in  consideration  that  the  defendant  would 
transport  the  property  at  the  rate  of  $75  per  car-load,  ' '  the  same 
being  a  rate  given,  subject  to  the  conditions  of  this  contract," 
the  plaintiffs  released  the  defendant  from  the  liability  of  a  com- 
mon carrier,  and  from  any  liability  for  any  delay  in  shipping  the 
stock  after  its  delivery  to  the  defendant,  and  agreed  that  the 
liability  of  the  defendant  should  be  only  that  of  a  private  car- 
rier for  hire.  The  plaintiff's  contracted  to  assume  all  risk  of 
damage  which  might  be  sustained  by  reason  of  any  delay  in 
transportation,  and  all  risk  of  damage  from  any  other  cause, 
not  resulting  from  the  willful  negligence  of  the  agents  of  the 
defendant.  It  was  further  agreed,  that  in  case  of  total  loss,  the 
damage  Should  in  no  case  exceed  the  sum  of  $100  per  head,  and 
in  ease  of  partial  loss,  damage  should  be  measured  in  the  same 
proportion.  A  printed  "regulation"  of  the  defendant,  attached 
to  the  contract,  provided  that  the  defendant  would  not  assume 
any  liability  over  $100  per  head  on  horses  and  valuable  live- 
stock, except  by  special  agreement.  B}^  the  contract  of  the 
parties  the  owner  of  the  horses  attended  and  cared  for  them 
upon  the  passage,  without  extra  charge  for  his  own  transporta- 
tion. 

A  railroad  company  which  undertakes  to  transport  live-stock 
for  hire,  for  such  persons  as  choose  to  employ  it,  assumes  the  re- 
lation of  a  common  carrier,  and  becomes  chargeable  with  the 
duties  and  obligations  which  are  incident  to  that  relation.  Kim- 
ball V.  Eutland  &  B.  R.  R.  Co.,  26  Vt.  247,  62  Am.  D.  567;  Rix- 
ford  V.  Smith,  52  N.  H.  355,  13  Am.  R.  42 ;  Clarke  v.  Rochester 
&  S.  R.  R.  Co.,  14  N.  Y.  570,  67  Am.  D.  205 ;  Evans  v.  Fitchburg 
R.  R.  Co.,  Ill  Mass.  142,  15  Am.  R.  19 ;  St.  Louis  &  S.  E.  Ry, 
Co.  V.  Dorman,  72  111.  504;  Powell  v.  Pennsylvania  R.  R.  Co., 
32  Pa.  St.  414,  75  Am.  D.  564;  Great  Western  Ry.  Co.  v.  Haw- 
kins, 18  Mich.  427,  433. 

^19 


§  106  LIABILITY  UNDER  SPECIAL  CONTEACT, 

By  this  it  is  not  meant  that  the  carrier  is  an  insurer  of  the 
property  as  respects  injury  which  it  may  suffer  from  all  causes. 
Such  a  liability  does  not  exist  without  qualification  as  to  per- 
sonal property  generally  in  the  hands  of  a  carrier.  He  is  not, 
for  instance,  an  insurer  in  respect  to  any  injury  unavoidablj' 
resulting  from  the  essential  nature  of  the  property  itself,  such 
as  the  natural  decay  of  fruit,  although  he  should  use  reasonable 
care  for  its  preservation.  For  like  reasons  as  those  upon  which 
rest  the  exceptions  to  the  absolute  obligation  of  the  carrier,  as 
respects  property  generally,  it  is  undoubtedly  true  that  the 
ordinary  common-law  liability  of  the  carrier  is  subject  to  some 
modifications  arising  from  the  nature  and  propensities  of  the 
animals,  and  their  capacity  for  inflicting  injuries  upon  them- 
selves and  upon  each  other,  when  live-stock  is  the  subject  of 
transportation.  What  may  be  the  nature  and  extent  of  such 
modifications  we  have  no  occasion  now  to  consider.  For  our 
present  purposes  it  is  enough  to  say  that  cases  where  the  injury 
is  the  result  of  want  of  ordinary  care  on  the  part  of  the  car- 
rier are  aqt  within  the  exceptions  to  the  rule.  See  cases  above 
cited.  ' 

The  recovery  in  this  ease  rests  alone  upon  the  neglect  of  the 
defendant  to  transport  the  horses  to  their  destination  within  a 
reasonable  time,  whereby,  from  exhaustion  and  exposure  to  cold, 
they  died.  The  law  has  been  determined  in  this  State,  and  in 
most  of  the  United  States,  as  well  as  in  the  Federal  Supreme 
Court,  to  be  that  a  common  carrier  of  goods  cannot  by  contract 
relieve  himself  from  liability  for  his  own  negligence.  Cliristen- 
son  v.  American  Express  Co.,  15  Minn,  270,  2  Am.  E.  122 ; 
Shriver  v.  Sioux  City  &  St.  P.  R.  R.  Co.,  24  Minn.  506,  31  Am. 
R.  353 ;  Railroad  Co.  v.  Lockwood,  17  Wall.  357 ;  Bank  of  Ken- 
tucky V.  Adams  Exp.  Co.,  93  U.  S.  174.  Nor  is  there  any  reason 
why  a  different  rule  should  prevail  in  respect  to  the  transporta- 
tion of  live-stock,  or  of  property  under  the  care  of  the  owner. 
The  rule  itself  rests  upon  considerations  of  public  policy,  and 
upon  the  fact  that  to  allow  the  carrier  to  absolve  himself  from 
the  duty  of  exercising  care  and  fidelity  is  inconsistent  with  the 
very  nature  of  his  undertaking.  These  reasons  apply  with 
undiminished  force  where  the  property  is  live-stock,  or  is  under 
the  care  of  the  owner,  who  has  not  the  direction  or  control  of 
the  agencies  and  the  operation  of  the  transportation.  To  what- 
ever extent  such  facts  might  modify  or  affect  the  liability  of 
the  carrier  for  accidents,  or  for  injuries  not  the  result  of  his 
own  negligence,  they  would  not  qualify  his  responsibility  for 
his  own  neglect  of  duty.  The  agreement  discharging  the  de- 
fendant from  the  liability  of  a  common  carrier  cannot  avail  to 

420 


MOULTON  V.  ST.  P.,  M.  &  M.  EY.  CO.  §  106 

divest  the  carrier  of  his  real  character,  nor  indirectly  relieve 
him  from  responsibilities  from  which  he  cannot  directly  by 
contract  free  himself.  Christenson  v.  American  Express  Co., 
supra;  Bank  of  Kentucky  v.  Adams  Express  Co.,  supra. 

Our  conclusion  therefore  is  that  the  defendant  was  responsible 
in  damages  for  its  negligence,  notwithstanding  the  contract. 

The  same  reasons  which  forbid  that  a  common  carrier  should, 
even  by  express  contract,  be  absolved  from  liability  for  his  own 
negligence,  stand  also  in  the  way  of  any  arbitrary  preadjustment 
of  the  measure  of  damages,  where  the  carrier  is  partially  re- 
lieved from  such  liability.  It  would  indeed  be  absurd  to  say 
that  the  requirement  of  the  law  as  to  such  responsibility  of  the 
carrier  is  absolute,  and  cannot  be  laid  aside,  even  by  the  agree- 
ment of  the  parties,  but  that  one-half  or  three-fourths  of  this 
burden,  which  the  law  compels  the  carrier  to  bear,  may  be  laid 
aside,  by  means  of  a  contract  limiting  the  recovery  of  damages 
to  one-half  or  one-fourth  of  the  known  value  of  the  property. 
This  would  be  mere  evasion,  which  would  not  be  tolerated.  Yet 
there  is  no  reason  why  the  contracting  parties  may  not  in  good 
faith  agree  upon  the  value  of  the  property  presented  for  trans- 
portation, or  fairly  liquidate  the  damages  recoverable  in  ac- 
cordance with  the  supposed  value.  Such  an  agreement  would 
not  be  an  abrogation  of  the  requirements  of  the  law,  but  only  the 
application  of  the  law  as  it  is  by  the  parties  themselves  to  the 
circumstances  of  the  particular  ea%e.  But  that  the  requirements 
of  the  law  be  not  evaded,  and  its  purposes  frustrated,  contracts 
of  this  kind  should  be  closely  scrutinized. 

Upon  the  face  of  the  contract  under  consideration,  it  is  ap- 
parent that  it  was  not  the  purpose  of  the  parties  to  liquidate 
the  damages  recoverable,  with  reference  to  the  value  of  the  prop- 
erty consigned  to  the  carrier.  Its  provisions  are  somewhat  con- 
tradictory, and  not  easily  reconciled.  The  general  regulation 
attached  to  the  contract,  to  the  effect  that  the  company  ''will  not 
assume  any  liability  over  one  hundred  dollars  per  head  on  horses 
and  valuable  live-stock  except  by  special  agreement,"  is  plainly 
opposed  to  the  law  as  established,  so  far  as  regards  the  negligence 
of  the  carrier.  As  a  regulation  it  is  therefore  of  no  effect.  The 
law  declares  that  the  carrier  shall  be  liable  to  the  extent  of  the 
value  of  the  property,  although  there  be  no  special  agreement. 
We  do  not  question  the  right  of  a  carrier  to  require  the  dis- 
closure, by  the  consignor,  of  the  value  of  the  property  presented 
for  transportation,  where  its  value  is  not  apparent  and  well 
known.  This  is  reasonable,  both  to  the  end  that  proper  care  may 
be  taken  of  the  property  while  it  is  in  the  hands  of  the  carrier, 
and  because  the  proper  charges  for  transportation  may  often 

421 


§  106  LIABILITY  UNDEE  SPECIAL  CONTEACT. 

depend  largely  upon  value.  We  see  nothing,  however,  in  this 
contract  which  can  be  regarded  as  having  been  intended  as  call- 
ing for  such  a  disclosure  on  the  part  of  the  plaintiffs,  or  as  estop- 
ping them  from  claiming  a  recovery,  upon  the  ground  of  the 
carrier's  negligence,  of  the  actual  value  of  the  horses.  In 
terms,  the  contract  purports  to  relieve  the  defendant  from  lia- 
bility, even  for  its  own  negligence,  and  at  the  same  time,  if  a 
recovery  shall  be  had  notwithstanding  this  agreement,  then  the 
amount  of  such  recovery  is  limited  to  the  sum  of  $100  per  head 
These  stipulations  cannot  naturally  be  applied  to  a  case  involv- 
ing as  the  cause  of  action  the  negligence  of  the  carrier,  without 
making  them,  in  effect,  to  be  an  agreement  in  the  first  place  for 
absolute  exemption  from  liability  (except  for  willful  negli- 
gence) ;  and  if  notwithstanding  the  agreed  exemption  a  recovery 
should  be  awarded,  it  shall  not  exceed  the  sum  named;  that  is 
to  say  (as  applied  to  a  case  of  negligence),  it  is,  in  effect,  an 
agreement  for  absolute  exemption,  and  that  failing  to  be  sus- 
tained, then  for  a  partial  exemption  from  the  liability  which 
the  law  imposes  in  such  cases,  and  which  cannot  be  laid  aside 
by  the  mere  consent  of  parties.  Such  a  contract  cannot  be 
sustained. 

Order  affirmed. 

Compare  with  Hart  v.  Pennsylvania  Railroad  Co.,  112  U.  S. 
331,  ante  §  105.  See  also  Alair  v.  Northern  Pacific  Railroad 
Co.,  53  Minn.  160,  54  N.  W.  R.  1072,  39  Am.  St.  R.  588. 


107.     HANSEN  V.  FLINT  AND  PERE  MARQUETTE  RAIL- 
ROAD CO., 

73  Wis.  346;  41  N.  W.  E.  529;  9  Am.  St.  R.  791.     1889. 

Action  to  recover  the  value  of  goods  shipped  over  defendant's 
line  and  partially  destroyed  by  fire.    Judgment  for  plaintiffs. 

Orton,  J.  The  facts  are  substantially  as  follows:  Roundy, 
Peckham  &  Co.,  merchants  of  the  city  of  Milwaukee,  on  No- 
vember 2,  1887,  upon  an  order  from  Hansen  and  Kirsh,  the  re- 
spondents, of  Onekama,  Michigan,  shipped  to  them  by  the  ap- 
pellant company  a  large  bill  of  goods,  Roundy,  Peckham  &  Co., 
on  that  day,  sent  the  goods  to  the  warehouse  of  the  appellant 
by  their  drayman,  and  received  in  return  the  following  receipt : 

"Original.  —  Milwaukee,  ,  188—,  —  Shipped  by  Roundy, 

Peckham  &  Co.  the  following  articles,  in  good  order,  to  be  de- 
livered in  like  good  order,  as  addressed,  without  unnecessary  de- 

422 


HANSEN  V.  F.  AND  P.  M.  R.  E.  CO.  §  107 

lay.  —Consigned  to  Hansen  &  Kirsh,  Onekama,  Mich.  —  Descrip- 
tion of  articles.  —  Weight. ' '  Here  follows  a  list  of  the  articles 
shipped,  covering  four  sheets  of  paper,  upon  each  of  which  is 
the  same  heading  as  above,  and  on  the  face  of  the  re- 
ceipt, and  on  each  page  or  sheet,  is  stamped  by  the  agent  of  the 
appellant  company  the  following:  "F.  &  P.  M.  R.  R.  Co. — 
Rec'd.  Nov.  2,  1887.— By  Agent— Milwaukee."  On  the  face  of 
the  stamp  is  written  the  letter  "P."  The  stamp  was  affixed  to 
the  receipt  by  a  Mr.  Pawlett,  the  agent  of  th.  appellant  com- 
pany, on  that  day,  who  wrote  the  letter  "P."  thereon  as  his 
initial  letter,  and  the  stamp  used  by  him  was  the  one  cus- 
tomarily used  by  the  agent  for  such  purpose.  A  portion  only 
of  the  goods  arrived  at  Onekama,  their  destination,  the  re- 
mainder having  been  burned  or  damaged  at  Manistee,  Michigan, 
by  fire.  The  value  of  the  goods  so  lost  was  $651.74,  for  which, 
and  interest  of  $45.62,  making  a  total  of  $697.36,  the  jury  ren- 
dered a  verdict  for  the  plaintiffs  by  direction  of  the  court,  and 
from  the  judgment  thereon  this  appeal  is  taken. 

The  contention  of  the  learned  counsel  of  the  appellant  is, 
that  the  defendant  was  entitled  to  show  that  its  route  and  line 
as  a  carrier  extended  no  farther  than  IManistee,  Michigan,  and 
that  said  goods  were  safely  carried  to  that  point,  and  deposited 
in  a  warehouse,  and  in  a  place  set  apart  for  the  use  of  the 
captain  and  proprietor  of  a  boat  called  Adriene,  which  plied 
between  Manistee  and  Onekama,  who  receipted  for  the  goods, 
and  was  in  the  act  of  removing  them,  and  had  removed  a  part 
onto  his  boat,  when  the  warehouse  was  totally  destroyed  by 
fire,  and  the  goods  not  then  removed  were  destroyed  or  injured 
without  negligence  of  the  defendant;  and  that  the  defendant 
was  entitled  to  show  further  that  Roundy,  Peckham  &  Co. 
well  understood  that  the  custom  was  between  the  defendant's 
line  and  such  connecting  carrier  that  such  connecting  carrier 
had  nothing  to  do  with  the  defendant's  line,  and  the  circum- 
stances connected  with  the  giving  of  the  receipt,  and  that  the 
agent,  Pawlett,  had  no  authority  to  make  a  through  bill  of 
lading  between  Milwaukee  and  Onekama.  This  evidence  was 
ruled  out  by  the  court,  and  proper  exceptions  taken.  The  ad- 
missibility of  this  evidence  depends  upon  the  legal  character 
of  the  receipt  as  being  a  full  and  perfect  contract  to  carry  the 
goods  through  the  entire  route,  or  otherwise.  If  the  receipt 
constitutes  a  through  bill  of  lading  of  the  goods  from  Mil- 
waukee to  Onekama,  then  it  could  not  be  contended  that  any 
parol  evidence  could  be  given  to  explain  or  vary  it,  and  what 
is  established  by  contract  cannot  be  changed  or  affected  by 
custom.     The  general  usage  of  a  railroad  company  in  respect 

423 


§  107  LIABILITY  UNDEK  SPECIAL  CONTRACT. 

to  forwarding  goods  marked  for  points  beyond  its  terminus 
will  be  deemed  to  enter  into  its  contract  of  transportation : 
Hooper  v.  Chicago  &  N.  W.  R'y  Co.,  27  Wis.  81,  9  Am.  Rep. 
439 ;  Wood  V.  Milwaukee  &  St.  Paul  R'y  Co.,  27  Wis.  541,  9  Am. 
Rep.  465,  Nor  could  it  be  contended  that  the  express  au- 
thority of  the  agent  must  be  proved  when  he  acted  as  such 
in  the  proper  place  for  receiving  goods  for  the  company,  and 
was  in  possession  of  the  company's  stamp  to  be  used  on  such 
receipts,  and  the  company  took  possession  of  the  goods  and 
caused  them  to  be  shipped  with  knowledge  of  the  receipt, 
which  it  must  be  presumed  the  company  had  before  they  were 
so  shipped.  No  other  proof  of  agency  is  necessary  than  that  the 
agent's  acts  justify  the  party  dealing  with  him  in  believing  that 
he  had  authority :   Kasson  v.  Noltner,  43  Wis.  646. 

The  sole  question,  therefore,  is.  Does  the  receipt  import  a 
full  and  complete  contract  to  carry  the  goods  to  their  destina- 
tion, or  such  a  contract  that  it  was  fully  performed  by  a  de- 
livery of  the  goods  to  the  connecting  carrier?  I  cannot  well 
see  how  a  receipt  or  bill  of  lading  could  be  drawn  to  make  a 
through-contract  if  this  receipt  does  not.  It  has  all  the  usual 
terms.  The  destination,  and  the  consignees  at  that  place  are 
named.  The  goods  are  ''shipped"  by  Roundy,  Peckham  &  Co., 
"in  good  order,  to  be  delivered  in  like  good  order,  as  addressed, 
without  unnecessary  delay.'.'  The  address  is  "Hansen  &  Kirsh, 
Onekama,  Mich.,"  as  the  consignees.  Outside  of  the  stamp  upon 
it,  it  is  more  like  a  shipping  bill  or  a  bill  of  lading  than  a  mere  re- 
ceipt. The  goods  are  not  received,  but  shipped  by  Roundy,  Peck- 
ham  &  Co.  The  stamp  is  marked  "Rec'd.  Nov.  2,  1887,  by  agent, 
P.,  Milwaukee."  All  the  apt  words  to  make  a  perfect,  through- 
contract  are  used,  and  none  omitted.  Manistee,  as  the 
destination,  is  not  mentioned,  nor  is  it  found  in  the  contract 
anywhere,  for  any  purpose,  nor  is  it  knouTi  from  the  receipt 
or  contract,  that  there  was  any  connecting  carrier  on  the  route, 
or  if  so,  what  one,  by  water,  from  Manistee.  The  respondents 
took  no  responsibility  of  carriage  beyond  Manistee,  but  the 
company  assumed  it  and  contracted  for  it.  Even  within  the 
rule  contended  for  by  the  learned  counsel  of  the  appellant, — 
which  is  claimed  to  be  the  general  rule  by  the  authorities, — 
"that  where  a  carrier  receives  goods  for  transportation  beyond 
his  own  line  he  is  not  responsible  for  any  loss  occurring  be- 
yond his  line,  unless  there  is  a  special  contract  or  some  usage 
of  business  which  shows  that  such  carrier  takes  the  goods  for 
the  whole  route,"  the  defendant  was  bound  to  carry  the  goods 
the  whole  route;  for  there  was  a  special  contract  to  that  effect, 
as  we  have  seen.     In  Wahl  v.  Holt,  26  Wis.  703,  the  bill  of 

424 


HANSEN  V.  F.  AND  P.  M.  E.  E.  CO.  §  107 

lading,  or  "shipping-receipt,"  as  it  is  called  in  the  opinion, 
had  the  same  apt  words:  "To  be  delivered  in  good  order  and 
condition  as  when  received,  as  addressed  on  the  margin,  or  to 
his  or  their  consignees."  On  the  margin  was:  "Account  C. 
Wahl,  George  F.  Wilson,  Providence,  R.  I."  But  the  receipt  in 
that  case  had  also,  "Care  A.  T.  Co.,  Bufifalo,"  and,  "By  the 
Commercial  Line  of  Propellers  from  Milwaukee  to  Buffalo." 
These  words  were  held  to  mean  only  that  the  line  of  pro- 
pellers by  which  the  goods  were  shipped  ran  "from  Milwau- 
kee to  Buffalo,"  and  "were  not  intended  to  define  the  points 
between  which  the  commercial  line  had  undertaken  to  transport 
the  goods" ;  and  it  was  held  that  the  proprietor  of  the  Commercial 
Line  contracted  to  carry  the  goods  to  Providence,  Rhode  Island. 
In  that  case,  as  in  this,  there  was  mixed  land  and  water  trans- 
portation by  connecting  lines.  The  shipping-receipt  or  bill  of 
lading  in  the  present  case  is  more  explicit,  definite,  and  complete, 
as  a  through-contract,  than  that  in  the  above  case,  and  there  is  no 
mention  of  an  intermediate  point  at  the  termination  of  the  de- 
fendant's line  to  break  the  continuity  between  Milwaukee  and 
Onekama.  It  is  very  clear  that  that  case  rules  this,  and  is 
sufficient  authority  for  holding  that  this  is  a  through-contract, 
without  citing  other  authorities.  That  case  as  well  as  this  is 
readily  distinguishable  from  Parmelee  v.  Western  Transp.  Co., 
26  Wis.  439,  as  well  as  from  all  other  cases  in  which  the  end  of 
the  route  was  held  to  be  an  intermediate  point,  or  the  end  of 
the  defendant's  line.  We  think  that  the  court  was  warranted  in 
directing  a  verdict  for  the  plaintiffs. 

The  judgment  of  the  circuit  court  is  affirmed. 


425 


CHAPTER  XIII. 

3.      TERMINATION  OF  THE  RELATION. 

108.     FISK  V.  NEWTON, 

1  Denio  (N.  Y.)  45;  43  Am.  D.  649.     1845. 

Action  agrainst  a  common  carrier  running  a  line  of  freight 
barges  on  the  Hudson  for  the  non-delivery  of  certain  kegs 
marked  for  plaintiff,  care  of  H.  S.  Field,  New  York.  The  kegs, 
according  to  a  usage  (which  was  proved)  in  case  the  consignee 
could  not  be  found,  were  delivered  to  storekeepers.  They  sold 
them,  credited  the  proceeds  to  the  line  of  boats,  and  became  in- 
solvent. Judgment  for  plaintiff  was  reversed  on  certiorari  by 
the  superior  court.     Plaintiff  then  brought  error. 

By  Court,  Jewett,  J.  It  is  well  settled  that,  prima  facie,  a 
common  carrier  is  bound  not  only  safely  to  convey,  but  safely 
to  deliver  a  parcel  which  he  has  undertaken  to  carry,  at  the 
place  to  which  it  is  directed,  to  the  consignee  personally:  Gib- 
son v.  Culver,  17  Wend.  305,  31  Am.  Dec.  297,  and  the  cases 
there  cited.  Personal  delivery,  however,  is  sometimes  dispensed 
with,  in  the  case  of  carriers  by  ships  and  boats.  Notice  given 
to  the  consignee  of  the  arrival  and  place  of  deposit,  comes  in 
lieu  of  personal  delivery:  2  Kent's  Com.  605,  3d  ed.  So  when 
goods  are  safely  conveyed  to  the  place  of  destination,  and  the 
consignee  is  dead,  absent,  or  refuses  to  receive,  or  is  not  known 
and  cannot  after  due  efforts  are  made  be  found,  the  carrier  may 
discharge  himself  from  further  responsibility,  by  placing  the 
goods  in  store  with  some  responsible  third  person  in  that  busi- 
ness, at  the  place  of  delivery,  for  and  on  account  of  the  owner. 

Wlien  so  delivered,  the  storehouse-keeper  becomes  the  bailee 
and  agent  of  the  owner  in  respect  to  such  goods.  In  this  case, 
the  wharf  was  the  place  of  delivery,  and  H.  S.  Field,  the  per- 
son to  whom,  from  the  directions  of  the  plaintiff,  the  goods 
were  to  be  delivered.  Field  was  unknown  to  the  carrier.  He 
did  not  call  at  the  place  of  delivery  for  the  goods.  The  con- 
signor had  omitted  to  inform  the  defendant  of  the  particular 
residence  of  Field,  or  of  his  occupation  or  place  of  business. 
He  was  a  mere  clerk,  having  no  place  of  business,  his  name  not 

426 


AMEEICAN  EXPRESS  CO.  v.  HOCKETT.      §§  108,  109 

in  the  city  directory,  and  was  not  discovered  by  the  carrier 
although  reasonable  efforts  were  made  to  find  him.  The  con- 
signor had  misinformed  Field  as  to  the  line  by  which  the  goods 
had  been  sent,  and  the  person  to  whose  care  they  were  directed 
to  be  delivered;  by  reason  of  which  Field  did  not  receive  the 
goods.  The  defendant  put  the  goods  in  store  with  a  responsible 
third  person,  for  and  on  account  of  the  owner,  according  to 
the  usage  of  the  trade  at  that  place  under  such  circumstances. 
Then  the  goods  are  lost,  through  the  insolvency  of  the  store- 
house-keeper, occurring  several  months  after  the  delivery.  I 
think  the  risk  of  the  carrier,  from  the  facts  in  the  case,  ceased 
on  the  delivery  of  the  goods  in  store,  and  that  the  plaintiff 
failed  in  his  action. 

The  judgment  of  the  superior  court  must  therefore  be  af- 
firmed. 


109.     AMERICAN  EXPRESS  CO.  V.  HOCKETT, 
30  Ind.  250;  95  Am.  D.  691.     1868. 

By  Court,  Elliott,  J.  Hockett  sued  the  American  Express 
Company  to  recover  the  value  of  a  package  containing  one  hun- 
dred dollars  in  currency,  received  by  the  company  at  Chilli- 
eothe,  Missouri,  to  be  carried  and  delivered  to  Hockett  at  Ander- 
sontown,  Indiana,  which  the  company  failed  to  do. 

An  answer  was  filed,  to  which  a  demurrer  was  sustained,  and 
the  company  excepted.  On  a  refusal  of  the  company  to  answer 
further,  judgment  was  rendered  for  Hockett.  The  company  ap- 
peals. The  ruling  of  the  court  on  the  demurrer  to  the  answer 
presents  the  only  question  in  the  case. 

The  answer  alleges  "that  the  package  of  money  mentioned 
in  the  complaint  was  duly  received  at  the  office  of  the  defendant 
in  Anderson,  Madison  County,  Indiana.  The  defendant,  upon 
inquiry,  could  not  find  the  residence  of  said  plaintiff  to  be  in 
said  town  of  Anderson,  or  in  the  vicinity;  and  being  ignorant 
of  the  real  place  of  residence  or  postoffice  address  of  said  plain- 
tiff, the  said  defendant,  on  the  day  of  the  arrival  of  said  pack- 
age, wrote  a  notice  informing  the  plaintiff  of  the  arrival  of 
said  package  of  one  hundred  dollars  at  the  said  office  of  said  de- 
fendant, and  that  the  same  was  ready  for  delivery,  and  then  and 
there  inclosed  the  said  notice  in  an  envelope,  indorsed  'Jona- 
than Hockett,  Anderson,  Indiana,'  and  then  and  there  duly 
stamped  the  same,  and  when  so  directed  and  stamped,  dropped 
the  same  into  the  postoffice  at  Anderson;  and  then  and  there 

427 


§  lOd  TERMINATION  OF  CAEEIEE  'S  RELATION. 

placed  said  package  of  money  in  a  safe  owned  by  the  defendant, 
wherein  said  defendant  placed  and  kept  all  money  packages 
arri\'ing  by  express  for  parties,  and  then  and  there  safely  locked 
the  same;  said  package  remaining  in  said  safe  thus  securely 
locked  up  for  several  days,  no  one  calling  for  the  same  until 
after  said  package  had  been  stolen  by  thieves  and  burglars,  who 
in  the  night-time  violently  broke  into  the  office  of  said  defendant 
where  said  safe  was  situate,  and  without  the  knowledge  of  said 
defendant,  broke  open  said  safe,  and  feloniously  stole,  took, 
and  carried  away  said  package  of  money,  without  any  fault  or 
neglect  of  the  defendant,"  etc. 

Express  companies  in  this  state  are  declared  by  statute  (1 
G.  &  H.  327)  to  be  ''common  carriers,  and  subject  to  all  the 
liabilities  to  which  common  carriers  are  subject  according  to 
law."  As  a  general  rule,  common  carriers  by  land  are  bound 
to  deliver  the  goods  to  the  consignee  at  his  residence  or  place 
of  business,  where,  from  the  nature  of  the  parcels,  this  is  the 
more  appropriate  place  for  their  delivery.  Nor  is  it  sufficient 
that  they  are  left  at  the  public  office  of  the  carrier,  unless  by 
express  permission,  or  a  usage  so  established  and  well  known 
as  to  be  equivalent  to  such  permission :  1  Parsons  on  Contracts, 
3d  ed.,  660.  Goods  carried  by  railroad  companies  form  such  an 
exception :  Bansemer  v.  Toledo  etc.  E.  R.  Co.,  25  Ind.  434,  87 
Am.  Dee.  367.  But  if  the  consignee  is  absent,  and  the  carrier 
after  diligent  inquiry  cannot  find  him,  or  ascertain  the  place 
of  his  residence  or  business,  then  the  liability  as  carrier  is 
deemed  at  an  end ;  but  it  is  the  duty  of  the  carrier  to  take  care 
of  the  goods,  by  holding  them  himself,  or  depositing  them  with 
some  suitable  person  for  the  consignee,  and  in  such  case  the 
person  holding  the  goods  becomes  the  bailee  of  the  owner  or 
consignee,  and  is  only  bound  to  reasonable  diligence. 

The  answer  in  this  case  alleges  that  the  defendant,  "upon 
inquiry,"  could  not  find  the  residence  of  the  consignee  to  be 
in  the  town  of  Anderson,  or  in  the  vicinity,  and  being  ignorant 
of  his  real  place  of  residence  or  postoffice  address,  etc.  The 
inference  from  the  answer  is,  that  the  inquiry,  whatever  it  was, 
was  made  of  some  one  at  defendant's  office,  for  it  seems  that 
immediately  after  the  arrival  of  the  package,  the  inquiry  was 
made,  the  package  deposited  in  the  safe,  and  the  notice  pre- 
pared to  be  dropped  in  the  postoffice.  But  if  not  made  there, 
where  and  of  whom  was  it  made  ?  Did  the  agent  of  the  company 
who  made  it  content  himself  with  asking  the  first  person  he  met, 
whether  resident  or  stranger,  or  did  he  make  the  inquiry  of 
several?  or  in  other  words,  did  he  make  diligent  and  careful 
inquiry  to  ascertain  the  residence  of  the  consignee?     The  law 

428 


AMERICAN  EXPRESS  CO.  v.  HOCKETT.      §§  109, 110 

required  this  to  be  done,  but  the  answer  does  not  aver  that  it 
was  done.  Again,  the  answer  does  not  aver  that  the  plaintiff, 
or  his  place  of  business,  if  any,  could  not  easily  have  been  found. 
For  aught  that  appears  in  the  answer,  the  consignee  may  have 
had  an  office  or  place  of  business  in  Anderson,  where  he  could 
readily  have  been  found. 

Nor  does  the  answer  show  that  reasonable  care  was  taken 
of  the  package.  It  alleges  that  it  was  deposited  in  a  safe  in  the 
company's  office,  in  which  other  money  packages  received  by 
the  company  were  deposited,  and  the  safe  securely  locked,  where 
it  remained  until  the  office  and  safe  were  broken  open  by  burg- 
lars and  the  package  stolen,  without  the  knowledge  of  the  com- 
pany. What  was  the  character  of  the  office  building?  "Was 
it  so  constructed  and  guarded  as  to  make  it  a  reasonably  safe 
place  in  which  to  leave  money  packages  unguarded?  The  answer 
is  silent  in  this  respect ;  and  we  cannot  infer  that  it  was  an  ap- 
propriate or  safe  building  for  such  a  purpose.  Nor  does  it 
appear  that  the  safe  in  which  the  money  was  deposited  was  such 
that  persons  of  ordinary  prudence  would  have  risked  it  in  such 
deposits.  It  is  called  a  safe,  yet,  for  anything  shown  by  the 
answer,  it  may  have  been  an  insecure  wooden  box.  The  building 
was  unguarded,  and  if,  as  alleged  in  the  answer,  the  company 
was  accustomed  to  leave  the  money  packages  received  in  the 
course  of  its  business  deposited  there,  it  might  reasonably  be 
expected  that  thieves  and  burglars  would  closely  scrutinize  its 
condition,  and  common  prudence  would  require  that  either  the 
building  or  the  safe  should  be  such  as  would  likely  resist  such 
an  attack ;  but  there  is  nothing  in  the  answer  showing  that  such 
was  the  character  of  either.  So  that  if  the  facts  alleged  in  the 
answer  could  be  deemed  sufficient  to  discharge  the  appellant 
from  liability  as  a  carrier,  still  it  fails  to  show  that  it  exercised 
reasonable  care  with  the  package  as  bailee.  It  follows  that,  in 
any  view  of  the  case,  the  answer  is  bad,  and  the  demurrer  to  it 
was  correctly  sustained. 

The  judgment  is  affirmed,  with  costs. 


110.     SCHEU  V.  BENEDICT, 

116  N.  Y.  510;  22  N.  E.  R.  1073;  15  Am.  St.  R.  426.  1889. 

Haight,  J.  This  action  was  brought  to  recover  damages  al- 
leged to  have  been  sustained  by  reason  of  a  cargo  of  malt  becom- 
ing damp  and  wet.  The  defendants  were  common  carriers  of 
freight  upon  the  Erie  Canal  and  Hudson  River,  and  as  such 

429 


§  110  TEEMINATION  OF  CARKIEE'S  RELATION. 

owned  and  ran  the  canal-boat  W.  W.  Beebe.  On  the  sixteenth 
day  of  June,  1882,  they  received  from  the  plaintiff  thirteen 
thousand  bushels  of  Canada  barley  malt,  in  good  order,  to  be 
transported  to  the  city  of  New  York.  Thereafter,  and  on  the 
twenty-ninth  day  of  June,  the  cargo  arrived,  and  notice  was 
given  to  the  consignees  of  such  arrival,  who  immediately,  and 
on  the  same  day,  commenced  to  unload  the  same,  taking  out 
two  thousand  four  hundred  bushels.  At  the  usual  hour  the 
men  stopped  worked,  and  did  not  appear  again  to  continue  the 
unloading  of  the  cargo  until  the  sixth  day  of  July,  being  the 
seventh  day  after  breaking  bulk.  It  was  then  found  that  the 
malt  had  been  injured  by  water,  and  the  consignees  refused  to 
receive  it. 

The  bill  of  lading  provided  that  the  consignees  should  have 
five  week-days,  regardless  of  weather,  in  which  to  discharge  the 
cargo  without  liability  for  demurrage.  In  discharging  the  cargo 
the  malt  had  to  be  shoveled  into  bags  and  taken  and  carted  away. 

Upon  the  trial,  questions  arose  as  to  whether  the  grain  was 
received  in  good  order,  and  as  to  whether  it  was  damaged  upon 
the  voyage  or  after  it  arrived  in  New  York,  all  of  which  we 
must  regard  as  settled  by  the  verdict  of  the  jury. 

In  submitting  the  case,  the  court  was  requested  by  the  de- 
fendant to  charge  that  "if  the  jury  should  find  that  the  carriers 
offered  to  deliver  the  cargo  after  its  arrival  in  New  York, 
and,  receiving  instructions  as  to  its  disposal,  proceeded  in  pur- 
suance thereof  to  a  place  designated,  and  commenced  to  dis- 
charge the  cargo,  then  the  mere  liability  as  common  carrier  ceased 
after  a  reasonable  time  had  elapsed  to  unload."  This  request 
was  refused  under  the  circumstances  of  the  case,  and  an  ex- 
ception was  taken.  The  court  had  instructed  the  jury  that  the 
consignees  were  entitled  to  a  reasonable  time  in  which  to  dis- 
charge the  cargo,  and  that  the  jury  were  the  judges  as  to  what 
was  a  reasonable  time,  which  must  be  determined  under  all 
of  the  circumstances  of  the  case;  that  the  defendants  were  re- 
sponsible for  the  cargo  until  it  was  delivered  in  some  form  or 
another;  that  the  mere  putting  of  it  at  the  disposal  of  the 
plaintiff's  agent  to  take  out  the  cargo  did  not  relieve  the  de- 
fendants of  their  responsibility  to  take  care  of  it  while  it  lay 
in  the  harbor  of  New  York,  and  was  not  yet  taken  out  of  the  boat, 
and  until  it  was  removed  either  by  the  plaintiff  or  defendants 
they  were  liable  for  the  proper  condition  of  the  cargo ;  and  that 
if  it  was  damaged  by  rain  whilst  lying  in  New  York,  the  de- 
fendants were  liable.  Exceptions  were  taken  to  these  charges, 
and  also  to  the  refusal  of  the  court  to  charge  that  "after  bulk 
had  been  broken  and  part  of  it  removed,  and  after  a  reasonable 

430 


SCHEU  V.  BENEDICT.  §  110 

time  had  then  elapsed  to  unload  or  remove  the  remainder  of  the 
cargo,  the  liability  of  the  carrier,  as  such,  ceased."  It  does 
not  appear  to  us  that  these  charges,  when  read  and  considered 
together,  present  any  ground  for  error  which  calls  for  a  reversal 
of  the  judgment. 

The  rule,  doubtless,  is,  that  the  common  carrier  of  freight 
by  boat  must,  in  order  to  relieve  himself  from  liability,  deliver 
the  goods  at  the  place  designated  in  good  condition.  Undoubted- 
ly there  may  be  a  constructive  delivery  which  would  terminate 
his  responsibility  as  a  carrier,  but  it  must  be  such  as  would 
in  law  be  recognized  as  a  delivery.  If  the  consignee  neglect 
to  accept  or  to  receive  the  goods,  the  carrier  is  not  thereby 
justified  in  abandoning  them  or  in  negligently  exposing  them 
to  injury.  If  they  are  not  accepted  and  received  when  notice 
is  given  of  their  arrival,  he  may  relieve  himself  from  responsi- 
bility by  placing  the  goods  in  a  warehouse  for  and  on  account 
of  the  consignee,  but  so  long  as  he  has  the  custody  a  duty  de- 
volves upon  him  to  take  care  of  the  property  and  preserve  it 
from  injury :  Tarbell  v.  Royal  Ex.  Shipping  Co.,  110  N.  Y.  170- 
182,  17  N.  E.  R.  721,  6  Am.  St.  R.  350;  Hathorn  v.  Ely,  28 
N.  Y.  78;  Fisk  v.  Ne\Ai;on,  1  Denio  (N.  Y.)  45,  43  Am.  Dec.  649; 
Price  V.  Powell,  3  N.  Y.  322 ;  Fenner  v.  Buffalo  etc.  R.  R.  Co., 
44  N.  Y.  505,  4  Am.  Rep.  709. 

As  to  whether  or  not  the  consignees  proceeded  with  reason- 
able diligence  to  unload  the  cargo  was,  as  the  trial  court  stated, 
a  question,  under  the  circumstances  of  the  case,  for  the  jury. 
In  order  to  remove  the  malt  from  the  boat,  it  had  to  be  bagged 
and  carted  away.  Whether  this  could  be  done  with  safety,  in 
a  rainy  day,  was  a  question  of  fact.  It  appears  that  Sunday 
and  one  holiday  had  intervened,  and  that  one  or  two  days  had 
been  rainy,  so  that  we  think  a  finding  that  the  consignees  had 
not  unreasonably  delayed  the  unloading  of  the  boat  is  justified 
by  the  evidence.  On  the  sixth  day  of  July,  as  we  have  seen, 
the  cargo  was  found  so  damp  as  to  cause  it  to  be  rejected  by 
the  inspector  of  the  parties.  The  consignees  had  the  right  to 
have  the  malt  inspected  as  it  was  taken  from  the  boat  before 
accepting  it.  The  entire  cargo  could  not  well  be  inspected  at 
the  same  time,  for  that  which  was  on  top  may  have  been  dry 
and  in  good  order,  whilst  that  in  the  bottom  of  the  boat  might 
have  been  wet  and  spoiled.  The  inspector  stood  by  and  ex- 
amined it  as  it  was  taken  from  the  boat,  and  it  was  only  such 
as  passed  his  inspection  that  was  accepted  by  the  consignees. 
That  which  remained  in  the  boat  at  the  close  of  work  on  the 
twenty-ninth  day  of  June  remained  in  the  custody  and  posses- 
sion of  the  defendants,  whose  duty  it  was  to  exercise  ordinary 

431 


§§  110,  111      TERMINATION  OF  CAEKIER'S  EELATION. 

care  to  preserve  and  protect  it  from  injury,  and  to  allow  the  con- 
signees a  reasonable  time  within  which  to  inspect  it  and  take 
it  away,  and  in  case  they  neglected  to  receive  or  take  it  within 
such  time,  then  it  was  the  duty  of  the  defendants  to  discharge 
it  in  store  or  warehouse  where  it  would  still  be  protected  from 
the  elements. 

It  consequently  appears  to  us  that  the  defendants  have  no 
ground  of  complaint  as  to  the  charges  made,  and  that  the 
judgment  should  be  affirmed,  with  costs.  ^ 


111.     ZINN  V.  NEW  JERSEY  STEAMBOAT  CO., 

49  N.  Y.  442;  10  Am.  B.  402.     1872. 

Action  for  damages  for  neglect  of  defendant  to  make  delivery 
or  give  notice  of  arrival  of  merchandise.  The  boxes  were 
shipped  from  Augusta,  Michigan,  October  15,  1866,  were  de- 
livered to  defendants  at  Albany  October  27,  arrived  in  New 
York  October  28,  and  were  stored  with  public  warehousemen 
October  30.  Plaintiffs  first  learned  of  their  arrival  February 
16,  1867,  and  received  them  April  15  following.  The  goods 
had  constantly  depreciated  in  value.    Judgment  for  plaintiffs. 

Allen,  J.  Common  carriers  assume  not  only  the  safe  carriage 
and  delivery  of  property  to  the  consignee,  but  also  that  mer- 
chandise and  other  property  received  by  them  for  transporta- 
tion shall  be  carried  to  the  place  of  destination  and  delivered 
with  reasonable  dispatch ;  and  for  any  unreasonable  delay,  either 
in  the  transportation  or  its  delivery  after  its  arrival  at  the  ter- 
minus of  the  route,  they  are  responsible.  Hand  v.  Baynes,  4 
Whart.  (Pa.)  204,  33  Am.  D.  54;  Raphael  v.  Pickford,  6  Scott 
N.  R.  478 ;  Blackstock  v.  N.  Y.  &  E.  R.  R.  Co.,  20  N.  Y.  48,  75 
Am.  D.  372 ;  Black  v.  Baxendale,  1  Exch.  410.  The  liability  of 
the  carrier  to  answer  for  the  non-delivery  of  goods,  or  the  want 
of  reasonable  expedition  in  their  delivery,  after  their  arrival  at 
the  place  of  their  destination,  was  not  controverted  upon  the 
trial. 

The  defendant  in  this  action  was  not  bound  to  deliver  the  mer- 
chandise to  the  consignees  at  their  place  of  business.  A  delivery 
or  offer  to  deliver  at  the  wharf  would  have  discharged  the  car- 
rier from  all  responsibility  as  such  carrier.  Carriers  by  water  or 
railroad  are  not  held  to  a  delivery  of  goods  to  the  consignees 
at  any  place  other  than  at  the  wharf  of  the  vessel  or  the  rail- 
road station,  and  a  notice  to  the  consignee  of  the  arrival  of  the 

432 


ZINN  V.  NEW  JEESEY  STEAMBOAT  CO.  §  HI 

goods,  and  of  a  readiness  to  deliver,  comes  in  place  of  a  per- 
sonal delivery,  so  far  as  to  release  the  carrier  from  the  extraor- 
dinary and  stringent  liability  incident  to  that  class  of  bailees. 
Gibson  v.  Culver,  17  Wend.  (N.  Y.)  305,  31  Am.  D.  297;  Fisk  v. 
Newton,  1  Denio  (N.  Y.)  45,  43  Am.  D.  649;  Fenner  v.  Buffalo 
&  St.  L.  R.  R.  Co.,  44  N.  Y.  505,  4  Am.  R.  709. 

If  the  consignee  is  present  the  goods  may  be  tendered  or  de- 
livered to  him  personally,  and  he  is  bound  to  remove  them  within 
a  reasonable  time.  If  he  is  not  present  he  is  entitled  to  reason- 
able notice  from  the  carrier  of  their  arrival,  and  a  fair  oppor- 
tunity to  take  care  of  and  remove  them.  If  the  consignee  is  un- 
known to  the  carrier,  the  latter  must  use  proper  and  reasonable 
diligence  to  find  him ;  and  if,  after  the  exercise  of  such  diligence, 
the  consignee  cannot  be  found,  the  goods  may  be  stored  in  a 
proper  place,  and  the  carrier  will  have  performed  his  whole 
duty,  and  will  be  discharged  from  liability  as  a  carrier.  But  for 
want  of  diligence  in  finding  the  consignee  and  giving  notice  of 
the  arrival  of  the  goods,  the  carrier  is  liable  for  the  damages 
resulting  from  a  delay  in  the  receipt  of  the  goods  by  the  con- 
signee, occasioned  by  such  want  of  diligence.  He  can  only  re- 
lieve himself  from  liability  by  storing  the  goods,  after,  by  the 
use  of  reasonable  diligence,  he  is  unable  to  find  the  consignee. 
Witbeck  v.  Holland,  45  N.  Y.  13,  6  Am.  R.  23.  A  common 
carrier  has  not  performed  his  contract  as  carrier  until  he  has 
delivered  or  offered  to  deliver  the  goods  to  the  owner,  or  done 
what  the  law  esteems  equivalent  to  a  delivery.  Smith  v.  Nashua 
&  Lowell  R.  R.,  7  Foster  (27  N.  H.)  86,  59  Am.  D.  364;  Price 
V.  Powell,  3  N.  Y.  322.  When  the  consignee  is  unknown  to  the 
carrier,  a  due  effort  to  find  him  is  a  condition  precedent  to  a 
right  to  warehouse  the  goods,  and,  as  notice  to  the  consignee 
takes  the  place  of  a  personal  delivery  of  the  goods,  and  as  a  due 
and  unsuccessful  effort  to  find  the  consignee  will  alone  excuse 
the  want  of  such  notice,  it  follows  that  if  a  reasonable  and  dili- 
gent effort  is  not  made  to  find  the  consignee,  the  carrier  is  liable 
for  the  consequence  of  the  neglect.  What  is  a  due,  a  reasonable 
effort,  c^nd  what  is  proper  and  reasonable  diligence,  depends 
necessarily  very  much  upon  the  circumstances  of  each  case,  and, 
in  the  nature  of  things,  is  a  question  of  fact  for  the  jury,  and 
not  of  law  for  the  court.  What  would  be  reasonably  sufficient 
in  one  place  might  be  entirely  inadequate  and  insufficient  in 
another,  and  the  extent  and  character  of  the  inquiries  to  be 
made,  in  the  exercise  of  a  reasonable  diligence  on  the  part  of 
the  carrier,  cannot  be  regulated  or  prescribed  by  any  fixed 
standard,  as  the  standard  must  shift  with  the  varying  circum- 
stances of  each  case.  The  law  cannot  and  does  not  define  the 
28  433 


§  111  TEEMINATION  OF  CAEEIEE'S  EELATION. 

measure  of  duty,  making  it  the  same  in  all  cases  and  under  all 
circumstances,  in  cases  like  the  present;  and,  therefore,  the 
question  whether  the  defendant  did  use  proper  and  reasonable 
diligence  to  find  the  consignee  was  properly  submitted  to  the 
jury.  Witbeck  v.  Holland,  45  N.  Y.  13,  6  Am.  R.  23;  West 
Chester  and  Phila.  Railroad  Co.  v.  McElwee,  67  Penn.  St.  311 ; 
Hill  V.  Humphreys,  5  Watts.  &  Serg.  (Pa.)  123,  39  Am.  D.  117. 

The  motion  for  a  non-suit  at  the  close  of  the  plaintiff's  case 
was  properly  denied.  It  had  then  been  proved  that  the  goods 
had  been  brought  to  New  York  by  the  defendant  as  a  common 
carrier,  and  been  put  in  store ;  that  the  plaintiffs,  the  consignees, 
had  had  no  notice  or  knowledge  of  their  arrival  or  of  their  stor- 
age, and  that,  between  the  time  of  their  landing  in  New  York 
and  their  receipt  by  the  plaintiffs,  they  had  greatly  depreciated 
in  value.  No  attempt  had  been  made  to  show  notice  of  the  ar- 
rival of  the  goods,  or  that  the  consignees  were  unknown  or 
could  not  be  found. 

The  doctrine  of  concurrent  negligence  has  no  application  to 
the  case.  It  was  several  weeks  after  the  landing  of  the  goods 
from  the  defendant's  steamer  on  the  wharf  in  New  York  that 
the  plaintiffs  learned  or  knew  of  their  arrival,  in  any  view  of  the 
evidence,  and  at  that  time  the  goods  had  become,  in  a  measure, 
unsalable,  and  their  market  value  was  diminished.  From  the 
time  the  plaintiffs  had  notice  of  the  arrival  of  the  goods  and  that 
they  were  subject  to  their  orders,  and  a  reasonable  time  had 
elapsed  for  their  removal,  they  were  at  the  risk  of  the  plaintiffs, 
and  no  liability  attached  to  the  defendant  for  subsequent  de- 
preciation in  value.  The  concurrent  acts  of  the  plaintiffs  and 
defendant  could  not  contribute  to  the  same  injury;  their  duties 
were  not  concurrent,  but  in  succession.  The  defendant's  duty 
was  to  give  the  plaintiffs  notice  or  make  due  diligence  to  find 
them,  and  until  that  was  done  the  goods  were  at  its  risk;  and 
when  the  duty  was  fully  performed  and  the  goods  put  in  store, 
the  liability  of  the  carrier  ceased,  and  the  risk  of  loss  by  de- 
preciation in  value  was  upon  the  plaintiffs.  The  duty  and  lia- 
bility of  the  one  grew  out  of  the  performance  of  duty  by  the 
other. 

The  defendant  gave  evidence  of  all  that  was  done  to  find  the 
consignees,  and  the  effort  made  was  very  slight,  and  would  not 
have  justified  the  court  in  ruling,  as  matter  of  law,  that  due  and 
reasonable  diligence  had  been  used  for  that  purpose.  The  in- 
quiries made  were  casual,  and  no  serious  attempt  was  made  to 
find  the  consignees  or  to  give  them  notice  of  the  arrival  of  the 
goods.  Indeed,  on  cross-examination,  the  freight  agent  of  the 
defendant  testified  that  it  was  not  their  custom  to  give  notice 

434 


MOSES  V.  B.  AND  M.  E.  R.  CO.  §§  111,  112 

to  the  people  in  the  city,  and  doubtless  the  agents  and  servants 
of  the  company  acted  under  a  mistake  as  to  the  duty  and  legal 
liability  of  the  carrier. 

There  was  no  question  touching  the  extraordinary  liability 
of  carriers  in  the  case.  The  claim  was  not  against  the  defend- 
ant as  an  insurer  of  the  safety  of  the  property,  but  for  want 
of  ordinary  and  reasonable  diligence  in  the  performance  of  a 
duty  resulting,  by  implication,  from  the  contract  of  carriage. 
The  judge,  therefore,  properly  refused  to  instruct  the  jury 
upon  the  subject  of  the  extraordinary  liability  of  the  defendant 
as  a  common  carrier.  As  the  goods  had  been  shipped  from 
Michigan  by  railroad,  and  the  plaintiffs  had  no  knowledge  that 
they  had  been  transferred  to  the  defendant  at  Albany,  and 
were  not  expecting  them  by  steamboat,  there  was  no  occasion 
for  them  to  be  on  the  look-out  for  them  on  the  defendant's 
wharf,  or  on  the  arrival  of  the  boats  of  the  company.  There 
was  nothing  to  justify  the  submission  of  any  question  to  the 
jury  on  this  branch  of  the  case.  There  was  no  complaint,  or 
reason  for  complaint,  of  the  manner  in  which  the  cause  was  sub- 
mitted to  the  jury,  and  the  verdict  is  conclusive  upon  the 
questions  of  fact. 

The  judgment  must  be  affirmed. 

All  concur,  except  Peckham,  J.,  not  sitting,  and  Grover,  J., 
not  voting. 


112.     MOSES  V.  BOSTON  AND  MAINE  RAILROAD  CO., 

32  N.  H.  523;  64  Am.  D.  381.     1854. 

Action  on  the  case  for  the  value  of  ten  bags  of  wool  burned 
in  defendant's  freight  depot  in  Boston.  A  public  notice,  of 
which  plaintiff  had  knowledge,  read :  ' '  Articles  of  freight  must 
be  taken  away  within  twenty-four  hours  after  being  unladen  from 
the  cars,  on  arriving  at  their  place  of  destination,  the  company 
reserving  the  right,  if  they  see  fit,  of  charging  storage  after 
that  lapse  of  time.  The  company  will  not  hold  themselves  re- 
sponsible, as  common  carriers,  for  goods  after  their  arrival  at 
their  place  of  destination,  and  unloading  in  the  company's  ware- 
house or  depot."  Five  questions  were  submitted  to  the  jury,  by 
consent.  1.  Was  the  wool  carried  over  the  road,  and  then  re- 
moved from  the  cars  to  the  platform  of  the  freight  depot  in 
Boston,  and  separated  from  the  other  goods  before  the  fire? 
2.  Was  it  so  carried  and  removed  from  the  cars  a  sufficient  time 
before  the  fire  to  enable  Townsend  &  Son  to  obtain  possession  of 
it  by  the  exercise  of  reasonable  diligence  on  the  part  of  the 
plaintiff  and  of  Townsend  &  Son  ?    3.  Did  the  wool  fail  of  being 

435 


§  112         tekm];nation  of  caeriee's  relation. 

delivered  to  Townsend  &  Son  by  reason  of  the  want  of  ordinary 
care  and  prudence  of  the  defendants'?  4.  Was  any  portion  of 
the  wool  sold  by  the  defendants  ?  5.  Did  the  plaintiff  have  any 
knowledge  of  the  printed  notice  before  the  wool  was  sent  over 
the  road  ?  They  could  not  agree  upon  the  first,  answered  ' '  yes ' ' 
to  the  third  and  * '  no  "  to  the  others.    Verdict  for  plaintiff". 

By  Court,  Sawyer,  J.  (After  stating  the  facts.)  The  po- 
sition taken  at  the  trial,  that  the  defendants  had  limited 
their  liability  as  common  carriers  to  the  time  when  the  wool 
was  taken  into  the  depot  by  a  public  notice  to  that  effect, 
would  not  have  availed  the  defendants  if  the  finding  of 
the  jury  upon  the  fifth  question  had  established  the  fact 
that  the  notice  was  brought  to  the  knowledge  of  the  plain- 
tiff before  the  wool  was  sent.  In  the  case  of  Moses  v.  Bos- 
ton etc.  R.  R.  Co.,  24  N.  H.  71,  55  Am.  Dec.  222,  it  was  expressly 
decided  that  a  public  notice  to  the  effect  that  the  railroad  com- 
pany would  not  be  responsible  for  loss  or  injury  to  goods  in 
their  hands  as  carriers,  except  such  as  might  arise 
from  negligence,  would  not  have  the  effect  thus  to  limit  their 
common-law  liability,  even  when  brought  home  to  the  knowledge 
of  the  owner.  This  renders  it  unnecessary  to  consider  any  ques- 
tion arising  upon  the  character  of  the  instructions  given  upon 
the  fifth  question;  and  the  only  remaining  point  in  the  case, 
considered  as  an  action  against  the  defendants  as  carriers,  upon 
the  original  count  and  the  second  and  fourth  amended  counts, 
is  that  involved  in  the  second  question,  raising  the  principal 
inquiry  in  the  case,  when  does  the  liability  of  a  railroad  com- 
pany as  carriers  of  goods  terminate? 

The  wool  in  this  case  was  received  and  conveyed  by  the  de- 
fendants in  their  ordinary  employment  as  common  carriers.  It 
was  not  of  a  value  disproportionate  to  its  bulk,  and  was  such 
that  no  deception  could  have  been  practiced  upon  them  as  to  the 
extent  of  the  risk  they  incurred.  In  the  transportation  of  such 
commodities  their  responsibility  as  carriers  commences  with  the 
receipt  of  the  goods,  though  not  put  by  them  immediately  on  the 
transit,  and  it  ceases  only  when  they  have  reached  their  destina- 
tion and  their  control  over  them  as  carriers  has  terminated. 
That  control  must  continue  until  delivery,  or  a  tender  or  offer 
to  deliver,  or  some  other  act  which  the  law  can  regard  as  equiva- 
lent to  a  delivery.  The  delivery  of  goods  conveyed  by  railroad 
is  necessarily  confined  to  certain  points  on  the  line  of  the  rail- 
road track.  Railroad  companies  cannot,  like  wagoners,  pass 
from  warehouse  to  warehouse,  and  there  discharge  their  freight 
to  the  various  consignees  upon  their  own  premises.     They  con- 

436 


MOSES  V.  B.  AND  M.  E.  E.  CO.  §  112 

sequently  establish  certain  points  as  places  of  delivery,  and  there 
unlade  their  cars  of  such  of  the  freight  as  may  most  conveniently 
find  its  ultimate  destination  from  those  respective  points.  But 
while  it  is  in  the  process  of  unloading,  and  afterwards,  while 
awaiting  removal,  it  must  be  protected  from  the  weather  and 
from  depredation.  Freight  is  brought  over  the  road  at  all 
hours,  by  night  as  well  as  by  day,  and  the  trains  must  necessar- 
ily be  more  or  less  irregular  in  the  hours  of  their  arrival.  It 
cannot  be  required  of  the  consignee  to  attend  at  the  precise 
mpment  when  his  goods  arrive,  to  receive  and  take  care  of  them, 
and  the  company  cannot  discharge  themselves  from  responsi- 
bility by  leaving  them  in  an  exposed  condition  in  the  open  air. 
Until  the  goods  have  passed  out  of  their  custody  and  control 
into  the  hands  of  the  proper  person  to  receive  them,  they  have 
a  duty  to  perform  in  the  preservation  and  protection  of  the 
property  even  after  their  responsibility  as  common  carriers  is 
at  an  end :  Smith  v.  Nashua  etc.  R.  R.  Co.,  27  N.  H.  86,  59  Am. 
Dee.  364.  It  thus  becomes  a  matter  of  necessity  for  them  to 
provide  depots,  or  warehouses,  for  the  reception  of  freight  at 
the  stations  established  for  its  delivery.  If  the  owner  or  con- 
signee, or  other  person  authorized  to  receive  the  goods,  is  pres- 
ent at  the  time  of  the  arrival,  and  has  opportunity  to  see  that 
they  have  arrived,  and  to  take  them  away,  this  may  be  regarded 
as  equivalent  to  a  delivery.  They  must  be  understood  after  this 
to  remain  in  the  charge  of  the  company,  for  his  convenience,  as 
depositaries  or  bailees  for  hire.  In  such  case,  the  grounds  upon 
which  the  common-law  liability  of  the  carrier  is  made  to  rest 
have  so  far  ceased  to  exist  that  there  is  no  longer  any  just  oc- 
casion for  holding  the  company  to  that  stringent  responsibility 
in  reference  to  these  goods.  They  are  no  longer  in  the  course 
of  transporation,  beyond  the  reach  of  the  owner,  and  under  the 
exclusive  control  and  observation  of  the  carrier.  The  owner  has 
again  got  sight  of  his  property,  and  is  in  a  situation,  to  some  ex- 
tent, to  oversee  and  protect  it.  Nor  is  he  any  longer  under  the 
difficulties  and  embarrassments  in  attempting  to  make  proof  of 
subsequent  fraud  or  negligence  as  when  it  was  on  its  passage 
beyond  the  reach  of  his  observation  and  under  the  private  con- 
trol of  the  carrier.  The  facilities  and  temptations  to  fraud  and 
collusion  in  the  embezzlement  or  larceny  of  the  goods  are  also 
removed,  or  at  least  greatly  diminished. 

It  is  upon  these  considerations  that  the  strict  liability  of  the 
carrier  is  founded.  "It  is  a  politic  establishment,"  says  Lord 
Holt,  in  Coggs  V.  Bernard,  2  Ld.  Raym.  918,  "contrived  by  the 
policy  of  the  law  for  safety  of  all  persons,  the  necessity  of 
whose  affairs  obliges  them  to  trust  these  sorts  of  persons,  that 

437 


§  112  TEKMINATION  OF  CAERIEE  'S  RELATION. 

they  may  be  safe  in  their  ways  of  dealings ;  for  else  the  carrier 
might  have  opportunity  of  undoing  all  persons  who  had  any 
dealings  with  him,  by  combining  with  thieves,  etc.,  and  yet  doing 
it  in  such  a  clandestine  way  as  would  not  be  possible  to  be  dis- 
covered. ' ' 

In  Kent's  Com.  602,  it  is  said  that  the  rule  subjecting  the 
carrier  to  this  strict  responsibility  is  founded  on  broad  princi- 
ples of  public  policy  and  convenience,  and  was  introduced  to 
prevent  the  necessity  of  going  into  circumstances  impossible  to 
be  unraveled.  If  it  were  not  for  the  rule,  the  carrier  might 
contrive,  by  means  not  to  be  detected,  to  be  robbed  of  his  goods 
in  order  to  share  the  spoils. 

That  the  danger  of  loss  by  such  collusion  is  not  now  so 
prominent  a  consideration  as  in  the  semi-barbarous  times,  when 
the  rule  was  first  adopted,  is  quite  probable.  But  upon  this 
point  it  is  well  said  by  the  court  in  Moses  v.  Boston  etc.  R.  R. 
Co.,  24  N.  H.  71,  55  Am.  Dec.  222,  before  cited,  that  the  im- 
mense increase  of  this  business,  the  great  value  of  the  commod- 
ities now  necessarily  intrusted  to  the  charge  of  common  carriers, 
and  the  vast  distances  to  which  they  are  to  be  transported,  have 
multiplied  the  difficulties  of  the  owner  who  seeks  to  recover  for 
the  loss  of  his  goods,  and  have  added  greatly  to  the  oppor- 
tunities and  temptations  of  the  carrier  who  might  be  disposed 
to  neglect  or  violate  his  trust.  The  reasons  upon  which  the  rule 
is  founded  apply  in  all  their  force  to  railroad  companies  as  car- 
riers, and  the  same  considerations  of  public  policy  which  lead 
to  its  adoption  continue  to  require  that  it  be  maintained  in  all 
its  rigor  as  to  them.  Any  relaxation  of  the  rule  must  be  at- 
tended only  with  mischief.  Many  of  the  most  eminent  English 
judges,  prior  to  the  acts  of  2  Geo.  IV.  and  1  Wm.  IV.,  expressed 
regret  that  their  courts  had  sanctioned  the  doctrine  that  the 
carrier  had  the  right  to  limit  his  liability  by  a  public  notice, 
and  predicted  the  necessity  for  the  legislative  interference  which 
resulted  in  those  acts  restoring  the  strict  responsibility  of  the 
ancient  rule,  in  order  to  remedy  the  mischiefs  Avhich  that  relax- 
ation had  introduced.    Moses  v.  Boston  etc.  R.  R.  Co.,  supra. 

The  inquiry  then  is.  At  what  moment  after  the  goods  con- 
veyed by  a  railroad  company  in  their  cars  have  reached  the  point 
on  the  line  of  the  railroad  where  they  are  to  be  delivered  may 
the  reasons  upon  which  the  common-law  liability  of  the  carrier 
is  founded  be  said  to  cease,  when  there  is  no  person  present  at 
their  arrival  authorized  to  receive  them,  and  ready  to  take  them 
away  ? 

That  it  is  the  duty  of  the  consignee  to  come  for  them  is  clear, 
but  it  would  be  quite  as  impracticable  for  him  to  be  at  the 

438 


MOSES  V.  B.  AND  M.  R.  E.  CO.  §  112 

place  of  delivery  at  the  precise  moment  of  tlieir  arrival,  or  of 
their  being  unladen  from  the  cars,  without  actual  notice  to  him 
of  their  arrival,  as  it  would  be  for  the  company  to  diverge  from 
their  line  of  road  in  order  to  deliver  them  at  his  place  of  busi- 
ness, or  to  send  notice  to  him  of  their  arrival,  before  proceeding 
to  unload  them.  The  arrival  may  be  in  the  night,  or  after  the 
expiration  of  business  hours  at  the  station,  or  at  so  late  a  period 
before  it  as  to  render  it  impossible  for  him  to  get  them  away 
within  the  hours  of  business.  If,  under  such  circumstances, 
they  have  been  removed  from  the  cars  and  placed  in  the  ware- 
house, it  cannot  be  said  that  they  are  so  placed  and  kept  there 
until  the  gates  are  opened,  and  business  resumed  upon  the  fol- 
lowing day,  for  any  purpose  having  reference  to  the  convenience 
and  accommodation  of  the  owner  or  consignee,  nor  can  the  pro- 
ceeding, upon  any  sound  view,  be  considered  as  equivalent  to 
a  delivery.  The  same  persons — ^the  servants  of  the  company — 
continue  in  the  exclusive  possession  and  control  of  the  goods 
as  when  they  were  on  their  transit,,  and  they  are  equally  shut  up 
from  the  observation  and  oversight  of  all  others.  The  consignee 
has  had  no  opportunity  to  know  that  they  have  arrived,  and  in 
what  condition,  and  is  in  no  better  situation  to  disprove  the  fact, 
or  to  question  any  account  the  servants  of  the  company  having 
them  in  charge  may  choose  to  give  of  what  may  happen  to 
them  after  they  are  so  removed  from  the  cars,  or  what  has  hap- 
pened prior  thereto,  than  before.  If  purloined,  destroyed,  or 
damaged  by  their  fraud  or  neglect  subsequently  to  their  removal, 
and  before  he  can  have  had  the  opportunity  to  come  for  them, 
he  is  left  to  precisely  the  same  proof  as  if  the  larceny  or  injury 
had  occurred  while  they  were  actually  in  transitu — ^the  declara- 
tions of  the  servants  of  the  company,  they  having,  it  may  well 
be  supposed,  feelings  and  interests  adverse  to  him,  and  knowing 
that  he  has  no  evidence  at  command  from  other  sources  to  im- 
peach their  statement.  It  is  obvious,  too,  that  the  opportunities 
and  facilities  for  embezzling  the  goods,  and  for  other  fraudulent 
or  collusive  practices,  must  continue  to  be  equally  tempting 
after  their  removal,  under  such  circumstances,  as  before.  The 
risk  of  detection,  in  some  respects,  may  be  made  even  less  than 
before,  by  the  greater  facilities  which  the  servant  of  the  com- 
pany in  charge  of  the  warehouse  has  of  manufacturing  evi- 
dence of  a  burglary,  or  creating  proof  of  the  destruction  of 
the  goods  by  fire,  set  by  himself  for  the  purpose  of  concealing 
his  agency  in  their  larceny.  For  all  purposes  which  have  refer- 
ence to  the  difficulties  and  embarrassments  in  the  way  of  the 
owner  in  attempti-ng  to  prove  loss  or  damage  by  the  fault  or  neg- 
lect of  the  company,  to  his  inability  to  give  to  them  any  over- 

439 


§  112  TEEMINATION  OF  CAKKIEE'S  EELATION. 

sight  or  protection,  and  to  his  security  against  fraud  and  collu- 
sion until  he  can  have  reasonable  opportunity  to  see  by  his  own 
observation,  or  that  of  others  than  the  servants  of  the  company, 
that  they  have  arrived,  and  to  send  for  and  take  them  away, 
he  stands  in  the  same  relation  to  them  as  when  they  were  ac- 
tually in  the  course  of  transportation.  The  same  broad  prin- 
ciples of  public  policy  and  convenience  upon  which  the  common- 
law  liability  of  the  carrier  is  made  to  rest  have  equal  appli- 
cation after  the  goods  are  removed  into  the  w^arehouse  as  before, 
until  the  owner  or  consignee  can  have  that  opportunity,  and 
the  same  necessity  exists  for  encouraging  the  fidelity  and  stim- 
ulating the  care  and  diligence  of  those  who  thus  continue  to  re- 
tain them  in  charge,  by  holding  that  they  shall  continue  subject 
to  the  risk. 

It  is  no  satisfactory  answer  to  this  view  to  say  that  the  com- 
pany, having  provided  a  warehause  in  which  to  store  the  goods 
for  the  accommodation  of  the  owner,  after  the  transit  has  ter- 
minated, may  be  regarded,  by  their  act  of  depositing  them  in 
the  warehouse,  as  having  delivered  them  from  themselves  as 
carriers  to  themselves  as  warehousemen.  The  question  still  is. 
When,  having  a  proper  regard  to  the  principles  which  lie  at  the 
basis  of  their  carrier  liability,  and  to  the  protection  and  secu- 
rity of  the  owner,  can  this  transmutation  of  the  character  in 
which  they  hold  the  goods  be  said  to  take  place,  and  this  con- 
structive delivery  to  be  made  ?  If  this  is  held  to  be  at  any  point 
of  time  before  there  can  be  opportunity  to  take  them  from  the 
hands  of  the  company,  then  may  the  owner  be  compelled  to 
leave  them  in  their  possession,  under  the  limited  liability  of 
depositaries,  or  bailees  for  hire,  contrary  to  his  intention,  and 
Avithout  any  act  or  neglect  on  his  part  which  may  be  considered 
as  indicative  of  his  consent  thereto.  It  may  have  been  his 
intention  to  take  them  from  their  possession  at  the  earliest  prac- 
ticable moment,  for  the  reason  that  he  may  not  be  disposed  to 
intrust  them  to  their  fidelity  and  care  without  the  stimulus  to 
the  utmost  diligence  and  good  faith  afforded  by  the  strict  lia- 
bility of  carriers.  If  he  neglects  to  take  them  away  upon  the 
first  opportunity  that  he  has  to  do  it,  he  may  be  said  thereby  to 
have  consented  that  they  shall  remain  under  the  more  limited 
responsibility.  But  upon  no  just  ground  can  this  consent  be 
presumed  when  his  only  alternative  is  to  be  at  the  station  where 
they  are  to  be  delivered  at  the  arrival  of  the  train,  at  whatever 
hour  that  may  happen  to  be,  whether  in  the  night  or  the  day, 
in  or  out  of  business  hours,  and  regardless  of  all  the  contin- 
gencies upon  which  the  regularity  of  its  arrival  may  depend. 
It  is  to  be  supposed  that  the  consignee  has  been  advised  by  the 

440 


MOSES  V.  B.  AND  M.  B.  E.  CO.  §  112 

consignor  of  the  fact  that  the  goods  have  been  forwarded,  and 
that  he  has  taken,  or  is  prepared  to  take,  proper  measures  to  look 
for  them  upon  their  arrival,  and  to  remove  them  as  soon  as  he 
can  have  reasonable  opportunity  to  do  so.  It  must  be  supposed, 
too,  that  he  is  informed  of  the  usual  course  of  business  on  the 
part  of  the  company,  and  of  their  agents,  in  the  hours  estab- 
lished for  the  arrival  of  the  trains,  and  in  unlading  the  cars, 
and  delivering  out  goods  of  that  description,  and  that  he  will 
exercise  reasonable  diligence  in  reference  to  all  these  particulars 
to  be  at  the  place  of  delivery  as  soon  as  may  be  practicable  after 
their  arrival,  and  take  them  into  his  possession.  The  extent  of 
the  reasonable  opportunity  to  be  afforded  him  for  that  purpose 
is  not,  however,  to  be  measured  by  any  peculiar  circumstances  in 
his  own  condition  and  situation,  rendering  it  necessary  for  his 
own  convenience  and  accommodation  that  he  should  have  longer 
time  or  better  opportunity  than  if  he  resided  in  the  vicinity  of 
the  warehouse,  and  was  prepared  with  the  means  and  facilities 
for  taking  the  goods  away.  If  his  particular  circumstances 
require  a  more  extended  opportunity,  the  goods  must  be  con- 
sidered after  such  reasonable  time  as  but  for  those  peculiar 
circumstances  would  be  deemed  sufficient  to  be  kept  by  the  com- 
pany for  his  convenience,  and  under  the  responsibility  of  depos- 
itaries or  bailees  for  hire  only. 

In  the  case  now  under  consideration  there  was  conflicting 
evidence  as  to  the  time  when  the  train  by  which  the  wool  was 
carried  arrived  at  the  depot  in  Boston.  The  evidence  on  the 
part  of  the  defense  tended  to  show  that  it  arrived  at  the  usual 
time — between  one  and  two  o'clock  in  the  afternoon;  while  that 
of  the  plaintiff  tended  to  show  that  it  did  not  arrive  until  three 
o'clock.  The  gates  of  the  depot  were  closed  at  five,  and  from 
two  to  three  hours  were  usually  required  for  unloading  the  ears. 
Upon  the  view  of  the  evidence  most  favorable  to  the  defendants, 
there  was  but  a  period  of  from  three  to  four  hours  at  the  longest 
for  the  consignee  to  have  come  and  taken  away  the  wool,  before 
the  gates  were  closed;  and  it  was  destroyed  before  they  were 
reopened  for  the  purpose  of  delivering  out  the  goods.  This 
view  proceeds  upon  the  supposition  that  the  work  of  unlad- 
ing the  cars  was  commenced  immediately  upon  their  arrival; 
and  in  the  process  of  unloading,  ordinarily  occupying  from  two 
to  three  hours,  the  wool  happened  to  be  the  first  article  taken 
from  the  cars,  and  was  at  once  ready  for  delivery.  Upon  a 
view  less  favorable  to  the  defendants,  the  jury  might  have  found, 
upon  the  evidence  in  the  case,  that  the  train  arrived  at  three, 
and  that  the  wool  was  unloaded  at  six — one  hour  after  the  clos- 
ing of  the  gates.     That  the  verdict,  in  answer  to  the  second 

441 


§  112  TEKMINATION  OF  CAEEIEE'S  EELATION. 

question  submitted  to  the  jury,  was  therefore  warranted  by  the 
evidence  is  quite  clear ;  and  as  there  are  no  legal  exceptions  to 
the  proceedings  upon  the  trial,  so  far  as  they  relate  to  this 
point,  the  answer  of  the  jury  to  that  question  establishes  the 
fact  that  the  consignees  had  no  reasonable  opportunity,  after  the 
wool  was  taken  from  the  cars,  to  come  and  inspect  it  so  far 
as  to  see  whether  from  its  outward  appearance  it  corresponded 
with  the  letter  of  advice  from  their  consignor  and  to  remove  it 
before  it  was  destroyed.  This  fact  being  established,  upon  the 
viewsk  of  the  law  entertained  by  the  court  the  transit  had  not 
terminated,  and  the  defendants  continued  liable  for  the  wool  as 
carriers  down  to  and  at  the  time  of  the  loss;  and  the  general 
verdict  entered  for  the  plaintiff  may  well  be  sustained  upon  the 
original  and  the  second  and  fourth  amended  counts. 

We  are  aware  that  this  view  of  the  liability  of  railroad  com- 
panies as  carriers  conflicts  with  the  opinion  of  the  suprome  court 
of  Massachusetts,  as  pronounced  by  the  learned  chief  justice  of 
that  court  in  the  recent  case  of  Norway  Plains  Co.  v.  Boston  etc. 
R.  R.  Co.,  1  Gray,  263,  61  Am.  Dec.  423.  In  that  case  it  was 
held  that  the  liability  as  carriers  ceases  when  the  goods  are 
removed  from  the  cars  and  placed  upon  the  platform  of  the 
depot  ready  for  delivery,  whether  it  be  done  in  the  day  time  or 
in  the  night,  in  or  out  of  the  usual  business  hours,  and  conse- 
quently irrespective  of  the  question  whether  the  consignee  has 
or  not  an  opportunity  to  remove  them.  The  ground  upon 
which  the  decision  is  based  would  seem  to  be  the  propriety  of 
establishing  a  rule  of  duty  for  this  class  of  carriers  of  a  plain, 
precise,  and  practical  character,  and  of  easy  application,  rather 
than  of  adhering  to  the  rigorous  principles  of  the  common  law. 
That  the  rule  adopted  in  that  case  is  of  such  character  is  not  to 
be  doubted;  but  with  all  our  respect  for  the  eminent  judge  by 
whom  the  opinion  was  delivered,  and  for  the  learned  court  whose 
judgment  he  pronounced,  we  cannot  but  think  that  by  it  the 
salutary  and  approved  principles  of  the  common  law  are  sacri- 
ficed to  considerations  of  convenience  and  expediency,  in  the 
simplicity  and  precise  and  practical  character  of  the  rule  which 
it  establishes. 

It  is  unnecessary,  then,  to  consider  the  exceptions  taken  upon 
the  other  view  of  the  case,  as  an  action  against  the  defendants 
for  negligence  in  their  care  of  the  wool  after  their  liability  as 
carriers  had  ceased. 

Judgment  upon  the  verdict. 

Perley,  C.  J.,  did  not  sit. 

See  also  Norway  Plains  Co.  v.  Boston  and  Maine  Railroad  Co., 
§  113,  and  McMillan  v.  M.  S.  &  N.  J.  Railroad  Co.,  §  114. 

442 


NOEWAY  PLAINS  CO.  v.  B.  AND  M.  E.  E.  CO.  §  113 

X    113.     NORWAY  PLAINS  CO.  V.  BOSTON  AND  MAINE 
RAILROAD  CO., 

1  Gray  (Mass.)  263;  61  Am.  D.  423.     1854. 

Action  for  goods  destroyed  by  fire  in  the  freiglit  depot  of  de- 
fendant railroad  company. 

By  Court,  Shaw,  C.  J.  The  liability  of  carriers  of  goods  by 
railroads,  the  grounds  and  precise  extent  and  limits  of  their  re- 
sponsibility, are  coming  to  be  subjects  of  great  interest  and 
importance  to  the  community.  It  is  a  new  mode  of  transporta- 
tion, in  some  respects  like  the  transportation  by  ships,  lighters, 
and  canal-boats  on  water,  and  in  others  like  that  by  wagons  on 
land;  but  in  some  respects  it  differs  from  both.  Though  the 
practice  is  new,  the  law  by  which  the  rights  and  obligations  of 
owners,  consignees,  and  of  the  carriers  themselves  are  to  be  gov- 
erned is  old  and  well  established.  It  is  one  of  the  great  merits 
and  advantages  of  the  common  law,  that  instead  of  a  series  of 
detailed  practical  rules,  established  by  positive  provisions,  and 
adapted  to  the  precise  circumstances  of  particular  cases,  which 
would  become  obsolete  and  fail  when  the  practice  and  course 
of  business  to  which  they  apply  should  cease  or  change,  the 
common  law  consists  of  a  few  broad  and  comprehensive  princi- 
ples, founded  on  reason,  natural  justice,  and  enlightened  public 
policy,  modified  and  adapted  to  the  circumstances  of  all  the 
particular  cases  which  fall  within  it.  These  general  principles 
of  equity  and  policy  are  rendered  precise,  specific,  and  adapted 
to  practical  use,  by  usage,  which  is  the  proof  of  their  general 
fitness  and  common  convenience,  but  still  more  by  judicial  ex- 
position; so  that,  when  in  a  course  of  judicial  proceeding,  by 
tribunals  of  the  highest  authority,  the  general  rule  has  been 
modified,  limited,  and  applied,  according  to  particular  cases, 
such  judicial  exposition,  when  well  settled  and  acquiesced  in, 
becomes  itself  a  precedent,  and  forms  a  rule  of  law  for  future 
cases  under  like  circumstances.  The  effect  of  this  expansive 
and  comprehensive  character  of  the  common  law  is,  that  whilst 
it  has  its  foundations  in  the  principles  of  equity,  natural  justice, 
and  that  general  convenience,  which  is  public  policy — although 
these  general  considerations  would  be  too  vague  and  uncertain 
for  practical  purposes  in  the  various  and  complicated  eases  of 
daily  occurrence,  in  the  business  of  an  active  community — yet 
the  n_iles  of  the  common  law,  so  far  as  cases  have  arisen  and 
practices  actually  grown  up,  are  rendered,  in  a  good  degree, 
precise  and  certain,  for  practical  purposes,  by  usage  and  judi- 

443 


§  113  TEKMINATION  OF  CAEEIEE'S  KELATION. 

cial  precedent.  Another  consequence  of  tliis  expansive  character 
of  the  common  law  is,  that  when  new  practices  spring  up, 
new  combinations  of  facts  arise,  and  cases  are  presented  for 
which  there  is  no  precedent  in  judicial  decision,  they  must  be 
governed  by  the  general  principle  applicable  to  cases  most  nearly 
analogous,  but  modified  and  adapted  to  new  circumstances,  by 
considerations  of  fitness  and  propriety,  of  reason  and  justice, 
which  grow  out  of  those  circumstances.  The  consequence  of 
this  state  of  the  law  is,  that  when  a  new  practice  or  new 
course  of  business  arises,  the  rights  and  duties  of  parties  are 
not  without  a  law  to  govern  them;  the  general  considerations 
of  reason,  justice,  and  policy,  which  underlie  the  particular  rules 
of  the  common  law,  will  still  apply,  modified  and  adapted  by 
the  same  considerations  to  the  new  circumstances.  If  these  are 
such  as  give  rise  to  controversy  and  litigation,  they  soon,  like 
previous  cases,  come  to  be  settled  by  judicial  exposition,  and 
the  principles  thus  settled  soon  come  to  have  the  effect  of  pre- 
cise and  practical  rules.  Therefore,  although  steamboats  and 
railroads  are  but  of  yesterday,  yet  the  principles  which  govern 
the  rights  and  duties  of  carriers  of  passengers,  and  also  those 
which  regulate  the  rights  and  duties  of  carriers  of  goods,  and  of 
the  owners  of  goods  carried,  have  a  deep  and  established  foun- 
dation in  the  common  law,  subject  only  to  such  modifications 
as  new  circumstances  may  render  necessary  and  mutually  bene- 
ficial. 

The  present  is  an  action  brought  to  recover  the  value  of  two 
parcels  of  merchandise,  forwarded  by  the  plaintiffs  to  Boston  in 
the  cars  of  the  defendants.  These  goods  were  described  in  two 
receipts  of  the  defendants,  dated  at  Rochester,  New  Hampshire, 
the  one  October  31,  1850,  and  the  other  November  2,  1850. 

By  the  facts  agreed,  it  appears  that  the  goods  specified  in  the 
first  receipt  were  delivered  at  Rochester,"  and  received  into  the 
cars,  and  arrived  in  Boston  seasonably  on  Saturday,  the  second 
of  November,  and  were  then  taken  from  the  cars  and  placed  in 
the  depot  or  warehouse  of  the  defendants ;  that  no  special  notice 
of  their  arrival  was  given  to  the  plaintiffs  or  their  agent;  but 
that  the  fact  was  known  to  Ames,  a  truckman,  who  was  their 
authorized  agent,  employed  to  receive  and  remove  the  goods, 
that  they  were  ready  for  delivery  a  least  as  early  as  Monday 
morning,  the  fourth  of  November,  and  that  he  might  then  have 
received  them. 

The  goods  specified  in  the  other  receipt  were  forwarded  to 
Boston  on  Monday,  the  fourth  of  November;  the  cars  arrived 
late;  Ames,  the  truckman,  kncAV  from  inspection  of  the  way-bill 
that  the  goods  were  on  the  train,  and  waited  for  them  some 

444 


NOEWAY  PLAINS  CO.  v.  B.  AND  M.  E.  E.  CO.  §  113 

time,  but  could  not  conveniently  receive  them  that  afternoon  in 
season  to  deliver  them  at  the  places  to  which  they  were  directed, 
and  for  that  reason  did  not  take  them;  in  the  course  of  the 
afternoon  they  were  taken  from  the  cars  and  placed  on  the  plat- 
form within  the  depot;  at  the  usual  time  at  that  season  of  the 
year  the  doors  were  closed.  In  the  course  of  the  night  the 
depot  accidentally  took  fire  and  was  burned  down,  and  the 
goods  were  destroyed.  The  fire  was  not  caused  by  lightning; 
nor  was  it  attributable  to  any  default,  negligence,  or  want  of 
due  care  on  the  part  of  the  railroad  corporation,  or  their  agents 
or  servants. 

We  understand  the  merchandise  depot  to  be  a  warehouse, 
suitably  inclosed  and  secured  against  the  weather,  thieves,  and 
other  like  ordinary  dangers,  with  suitable  persons  to  attend  it, 
with  doors  to  be  closed  and  locked  during  the  night,  like  other 
warehouses  used  for  storage  of  merchandise;  that  it  is  fur- 
nished with  tracks  on  which  the  loaded  cars  run  directly  into  the 
depot  to  be  unloaded ;  that  there  are  platforms  on  the  sides 
of  the  track  on  which  the  goods  are  first  placed;  that  if  not 
immediately  called  for  and  taken  by  the  consignees,  they 
are  separated  according  to  their  marks  and  directions,  and 
placed  by  themselves  in  suitable  situations  within  the  depot, 
there  to  remain  a  reasonable  and  convenient  time,  without  ad- 
ditional charge,  until  called  for  by  parties  entitled  to  receive 
them. 

The  question  is,  whether  under  these  circumstances  the  de- 
fendants are  liable.  That  railroad  companies  are  authorized  by 
law  to  make  roads  as  public  highways,  to  lay  down  tracks,  place 
cars  upon  them,  and  carry  goods  for  hire,  are  circumstances 
which  bring  them  within  all  the  rules  of  the  common  law,  and 
make  them  eminently  common  carriers.  Their  iron  roads, 
though  built  in  the  first  instance,  by  individual  capital,  are  yet 
regarded  as  public  roads,  required  by  common  convenience  and 
necessity,  and  their  allowance  by  public  authority  can  be  only 
justified  on  that  ground.  The  general  principle  has  been  uni- 
formly so  decided  in  England  and  in  this  country ;  and  the  point 
is  to  ascertain  the  precise  limits  of  their  liability.  This  was 
done  to  a  certain  extent  in  this  court  in  a  recent  case,  with 
which,  as  far  its  it  goes,  we  are  entirely  satisfied:  Thomas  v. 
Boston  &  Providence  R.  R.,  10  Met.  472. 

Being  liable  as  common  carriers,  the  rule  of  the  common  law 
attaches  to  them,  that  they  are  liable  for  losses  occurring  from 
any  accident  which  may  befall  the  goods  during  the  transit,  ex- 
cept those  arising  from  the  act  of  God  or  a  public  enemy.  It 
is  not  necessary  now  to  inquire  into  the  weight  of  those  consid- 

445 


§  113  TERMINATION  OF  CAEEIEE'S  EELATION. 

erations  of  reason  and  policy  on  which  the  rule  is  founded;  nor 
to  consider  what  casualty  may  be  held  to  result  from  an  act  of 
God  or  a  public  enemy;  because  the  present  case  does  not  turn 
on  any  such  distinction.  It  is  sufficient,  therefore,  to  state  and 
affirm  the  general  rule.  In  the  present  case,  the  loss  resulted 
from  a  fire,  of  which  there  is  no  ground  to  suggest  that  it  was 
an  act  of  God ;  and  it  is  equally  clear  that  it  did  not  result  from 
any  default  or  negligence  on  the  part  of  the  company,  though 
the  goods  remained  in  their  custody.  If  at  the  time  of  the 
loss  they  were  liable  as  common  carriers,  they  must  abide  by 
the  loss;  because,  as  common  carriers,  they  were  bound  as  in- 
surers to  take  the  risk  of  fire  not  caused  by  the  act  of  God,  and 
in  such  case  no  question  of  default  or  negligence  can  arise. 
Proof  that  it  was  from  a  cause  for  which  they,  neither  by  them- 
selves nor  their  servants,  were  in  any  degree  chargeable  could 
amount  to  no  defense,  and  would  therefore  be  inadmissible  in 
evidence.  If,  on  the  contrary,  the  transit  was  at  an  end,  if  the 
defendants  had  ceased  to  have  possession  of  the  goods  as  com- 
mon carriers,  and  held  them  in  another  capacity  as  warehouse- 
men, then  they  were  responsible  only  for  the  care  and  diligence 
which  the  law  attaches  to  that  relation ;  and  this  does  not  extend 
to  a  loss  by  an  accidental  fire,  not  caused  by  the  default  or  negli- 
gence of  themselves,  or  of  servants,  agents,  or  others,  for  whom 
they  are  responsible. 

The  question  then  is,  when  and  by  what  act  the  transit  of  the 
goods  terminated.  It  was  contended  in  the  present  case  that, 
in  the  absence  of  express  proof  of  contract  or  usage  to  the  con- 
trary, the  carrier  of  goods  by  land  is  bound  to  deliver  them  to 
the  consignee,  and  that  his  obligation  as  carrier  does  not  cease 
till  such  delivery.  This  rule  applies,  and  may  very  properly 
apply,  to  the  case  of  goods  transported  by  wagons  and  other 
vehicles  traversing  the  common  highways  and  streets,  and  which 
therefore  can  deliver  the  goods  at  the  houses  of  the  respective 
consignees.  But  it  can  not  apply  to  railroads,  whose  line  of 
movement  and  point  of  termination  are  locally  fixed.  The  na- 
ture of  the  transportation,  though  on  land,  is  much  more  like 
that  by  sea,  in  this  respect,  that  from  the  very  nature  of  the 
case  the  merchandise  can  only  be  transported  along  one  line 
and  delivered  at  its  termination,  or  at  some  fixed  place  by  its 
side,  at  some  intermediate  point.  The  rule  in  regard  to  ships 
is  very  exactly  stated  in  the  opinion  of  Buller,  J.,  in  Hyde  v. 
Trent  &  Mersey  Navigation,  5  T.  R.  397 :  "A  ship  trading  from 
one  port  to  another  has  not  the  means  of  carrying  the  goods  on 
land ;  and  according  to  the  established  course  of  trade,  a  deliv- 

446 


NORWAY  PLAINS  CO.  v.  B.  AND  M.  E.  E.  CO.  §  113 

ery  on  the  usual  wharf  is  such  a  delivery  as  will  discharge  the 
carrier. ' ' 

Another  peculiarity  of  transportation  by  railroad  is,  that  the 
car  can  not  leave  the  track  or  line  of  rails  on  which  it  moves ;  a 
freight  train  moves  with  rapidity,  and  makes  very  freqnent  jour- 
neys, and  a  loaded  car,  whilst  it  stands  on  the  track,  necessarily 
prevents  other  trains  from  passing  or  coming  to  the  same  place ; 
of  course  it  is  essential  to  the  accommodation  and  convenience 
of  all  persons  interested  that  a  loaded  car,  on  its  arrival  at  its 
destination,  should  be  unloaded,  and  that  all  the  goods  carried  on 
it,  to  whomsoever  they  may  belong  or  whatever  may  be  their 
destination,  should  be  discharged  as  soon  and  as  rapidly  as  it  can 
be  done  with  safety.  The  car  may  then  pass  on  to  give  place 
to  others,  to  be  discharged  in  like  manner.  From  this  necessary 
condition  of  the  business,  and  from  the  practice  of  these  trans- 
portation companies  to  have  platforms  on  which  to  place  goods 
from  the  cars,  in  the  first  instance,  and  warehouse  accommoda- 
tion by  which  they  may  be  securely  stored,  the  goods  of  each 
consignment  by  themselves,  in  accessible  places,  ready  to  be 
delivered,  the  court  are  of  the  opinion  that  the  duty  assumed 
by  the  railroad  corporation  is — and  this,  being  known  to  owners 
of  goods  forwarded,  must,  in  the  absence  of  proof  to  the  con- 
trary, be  presumed  to  be  assented  to  by  them  so  as  to  consti- 
tute the  implied  contract  between  them — that  they  will  carry  the 
goods  safely  to  the  place  of  destination,  and  there  discharge 
them  on  the  platform,  and  then  and  there  deliver  them  to  the 
consignee  or  party  entitled  to  receive  them,  if  he  is  there  ready 
to  take  them  forthwith;  or  if  the  consignee  is  not  there  ready 
to  take  them,  then  to  place  them  securely  and  keep  them  safely 
a  reasonable  time,  ready  to  be  delivered  when  called  for.  This, 
it  appears  to  us,  is  the  spirit  and  legal  effect  of  the  public  duty 
of  the  carriers,  and  of  the  contract  between  the  parties  when 
not  altered,  or  modified  by  special  agreement,  the  effect  and 
operation  of  which  need  not  here  be  considered. 

This  we  consider  to  be  one  entire  contract  for  hire;  and 
although  there  is  no  separate  charge  for  storage,  yet  the  freight 
to  be  paid,  fixed  by  the  company  as  a  compensation  for  the  whole 
service,  is  paid  as  well  for  the  temporary  storage  as  for  the  car- 
riage. This  renders  both  the  services,  as  well  the  absolute  un- 
dertaking for  the  carriage  as  the  contingent  undertaking  for  the 
storage,  to  be  services  undertaken  to  be  done  for  hire  and  re- 
ward. From  this  view  of  the  duty  and  implied  contract  of  the 
carriers  by  railroad,  we  think  there  result  two  distinct  liabilities : 
first,  that  of  common  carriers,  and  afterwards  that  of  keepers 

447 


§  113  TEEMINATION  OF  CARRIER'S  RELATION. 

for  hire,  or  warehouse  keepers ;  the  obligations  of  each  of  which 
are  regulated  by  law. 

We  may  then  say,  in  the  case  of  goods  transported  by  rail- 
road, either  that  it  is  not  the  duty  of  the  company  as  common 
carriers,  to  deliver  the  goods  to  the  consignee,  which  is  more 
strictly  conformable  to  the  truth  of  the  fact;  or,  in  analogy  to 
the  old  rule,  that  delivery  is  necessary,  it  may  be  said  that  de- 
livery by  themselves  as  common  carriers,  to  themselves  as  keep- 
ers for  hire,  conformably  to  the  agreement  of  both  parties,  is  a 
delivery  which  discharges  their  responsibility  as  common  car- 
riers. If  they  are  chargeable  after  the  goods  have  been  landed 
and  stored,  the  liability  is  one  of  a  very  different  character,  one 
which  binds  them  only  to  stand  to  losses  occasioned  by  their 
fault  or  negligence.  Indeed,  the  same  doctrine  is  distinctly  laid 
down  in  Thomas  v.  Boston  &  Providence  K-.  R.,  10  Met.  (Mass.) 
472,  43  Am.  D.  444,  with  the  same  limitation.  The  point  that 
the  same  company,  under  one  and  the  same  contract,  may  be 
subject  to  distinct  duties,  for  a  failure  in  which  they  may  be 
liable  to  different  degrees  of  responsibility,  will  result  from  a 
comparison  of  the  two  cases  of  Garside  v.  Trent  &  Mersey  Navi- 
gation, 4  T.  E.  581,  and  Hyde  v.  Trent  &  Mersey  Navigation, 
5  Id.  389.  See  also  Van  Santvoord  v.  St.  John,  6  Hill.  157; 
McHenry  v.  Philadelphia,  Wilmington  &  Baltimore  R.  R.,  4 
Ilarr.  (Del.)  448. 

The  company,  having  received  an  adequate  compensation  for 
the  entire  service,  if  they  store  the  goods,  are  paid  for  that 
service;  they  are  depositaries  for  hire,  and  of  course  respon- 
sible for  the  security  and  fitness  of  the  place  and  all  precautions 
necessary  to  the  safety  of  the  goods,  and  for  ordinary  care  and 
attention  of  their  servants  and  agents,  in  keeping  and  deliver- 
ing them  when  called  for.  This  enforces  the  liability  of  com- 
mon carriers,  to  the  extent  to  which  it  has  been  uniformly 
carried  by  the  common  law,  so  far  as  the  reason  and  principle 
of  the  rule  render  it  fit  and  applicable,  that  is,  during  the 
transit;  and  affords  a  reasonable  security  to  the  owner  of  goods 
for  their  safety,  until  actually  taken  into  his  own  custody. 

The  principle  thus  adopted  is  not  new;  many  cases  might 
be  cited:  one  or  two  will  be  sufficient.  Where  a  consignee  of 
goods,  sent  by  a  common  carrier  to  London,  had  no  warehouse 
of  his  own,  but  was  accustomed  to  leave  the  goods  in  the  wagon- 
office  or  warehouse  of  the  common  carrier,  it  was  held  that  the 
transit  was  at  an  end  when  the  goods  were  received  and  placed 
in  the  warehouse :  Rowe  v.  Pickford,  8  Taunt.  83.  Though  this 
was  a  case  of  stoppage  in  transitu,  it  decides  the  principle. 
But  another  case  in  the  same  volume  is  more  in  point :    In  re 

448 


NOEWAY  PLAINS  CO.  v.  B.  AND  M.  E.  E.  CO.  §  113 

Webl),  Id.  443.  Common  carriers  agreed  to  carry  wool  from 
London  to  Frome  under  a  stipulation  that  when  the  consignees 
had  not  room  in  their  own  store  to  receive  it,  the  carriers,  with- 
out additional  charge,  would  retain  it  in  their  own  warehouse 
until  the  consignor  was  ready  to  receive  it.  Wool  thus  car- 
ried, and  placed  in  the  carriers'  warehouse,  was  destroyed  by  an 
accidental  fire;  it  was  held  that  the  carriers  were  not  liable. 
The  court  say  that  this  was  a  loss  which  would  fall  on  them  as 
carriers,  if  they  were  acting  in  that  character,  but  would  not 
fall  on  them  as  warehousemen. 

This  view  of  the  law,  applicable  to  railroad  companies,  as 
common  carriers  of  merchandise,  affords  a  plain,  precise,  and 
practical  rule  of  duty,  of  easy  application,  well  adapted  to  the 
security  of  all  persons  interested;  it  determines  that  they  are 
responsible  as  common  carriers  until  the  goods  are  removed 
from  the  cars  and  placed  on  the  platform;  that  if,  on  account 
of  their  arrival  in  the  night,  or  at  any  other  time  when,  by  the 
usage  and  course  of  business,  the  doors  of  the  merchandise 
depot  or  warehouse  are  closed,  or  for  any  other  cause,  they  can 
not  then  be  delivered ;  or  if,  for  any  reason,  the  consignee  is  not 
there  ready  to  receive  them — it  is  the  duty  of  the  company  to 
store  them  and  preserve  them  safely,  under  the  charge  of  com- 
petent and  careful  servants,  ready  to  be  delivered,  and  actually 
deliver  them  when  duly  called  for  by  parties  authorized  and 
entitled  to  receive  them ;  and  for  the  performance  of  these  duties 
after  the  goods  are  delivered  from  the  cars  the  company  are 
liable  as  warehousemen,  or  keepers  of  goods  for  hire. 

It  was  argued  in  the  present  case  that  the  railroad  company 
are  responsible  as  common  carriers  of  goods  until  they  have 
given  notice  to  consignees  of  the  arrival  of  goods.  The  court 
are  strongly  inclined  to  the  opinion  that  in  regard  to  the  trans- 
portation of  goods  by  railroad,  as  the  business  is  generally  con- 
ducted in  this  country,  this  rule  does  not  apply.  The  imme- 
diate and  safe  storage  of  the  goods  on  arrival,  in  warehouses 
provided  by  the  railroad  company,  and  without  additional  ex- 
pense, seems  to  be  a  substitute  better  adapted  to  the  conven- 
ience of  both  parties.  The  arrivals  of  goods  at  the  larger  places 
to  which  goods  are  thus  sent  are  so  numerous,  frequent,  and 
various  in  kind  that  it  would  be  nearly  impossible  to  send 
special  notice  to  each  consignee  of  each  parcel  of  goods  or  sin- 
gle article  forwarded  by  the  trains.  We  doubt  whether  this  is 
conformable  to  usage;  but  perhaps  we  have  not  facts  enough 
disclosed  in  this  case  to  warrant  an  opinion  on  that  question. 
As  far  as  the  facts  on  this  point  do  appear,  it  would  seem  prob- 
able that  persons  frequently  forwarding  goods  have  a  general 
29  449 


§  113  TERMINATION  OF  CAREIEE'S  EELATION. 

agent,  who  is  permitted  to  inspect  the  way-bills,  ascertain  what 
goods  are  received  for  his  employers,  and  take  them  as  soon  as 
convenient  after  their  arrival.  It  also  seems  to  be  the  practice 
for  persons  forwarding  goods  to  give  notice  by  letter,  and  in- 
close the  railroad  receipt,  in  the  nature  of  a  bill  of  lading,  to  a 
consignee  or  agent,  to  warn  him  to  be  rea  ly  to  receive  them. 
From  the  two  specimens  of  the  form  of  receipt  given  by  these 
companies  produced  in  the  present  case,  we  should  doubt  whether 
the  name  of  any  consignee  or  agent  is  usually  specified  in  the 
receipt  and  on  the  way-bill.  The  course  seems  to  be  to  specify 
the  marks  and  numbers,  so  that  the  goods  may  be  identified 
by  inspection  and  comparison  with  the  way-bill.  If  it  is  not 
usual  to  specify  the  name  of  a  consignee  in  the  way-bill  as  well 
as  on  the  receipt,  it  would  be  impossible  for  the  corporation  to 
give  notice  of  the  arrival  of  each  article  and  parcel  of  goods. 
In  the  tM'o  receipts  produced  in  this  case,  which  are  printed 
forms,  a  blank  is  left  for  the  name  of  a  consignee,  but  it  is  not 
filled,  and  no  consignee  in  either  case  is  named.  The  legal 
eiTeet  of  such  a  receipt  and  promise  to  deliver  no  doubt  is  to 
deliver  to  the  consignor  or  his  order.  If  this  is  the  usual  or 
frequent  course,  it  is  manifest  that  it  would  be  impossible  to 
give  notice  to  any  consignee;  the  consignor  is  prima  facie  the 
party  to  receive,  and  he  has  all  the  notice  he  can  have.  But  we 
have  thought  it  unnecessary  to  give  a  more  decisive  opinion  on 
this  point,  for  the  reason,  already  apparent,  that  in  these  re- 
ceipts no  consignee  was  named ;  and  for  another,  equally  con- 
clusive, that  Ames,  the  plaintiff's  authorized  agent,  had  actual 
notice  of  the  arrival  of  both  parcels  of  goods. 

In  applying  these  rules  to  the  present  case,  it  is  manifest  that 
the  defendants  are  not  liable  for  the  loss  of  the  goods.  Those 
which  were  forwarded  on  Saturday  arrived  in  the  course  of  that 
day,  lay  there  on  Sunday  and  Monday,  and  were  destroyed  in 
the  night  between  Monday  and  Tuesday.  But  the  length  of  time 
makes  no  difference.  The  goods  forwarded  on  Monday  were 
unladen  from  the  cars  and  placed  in  the  depot  before  the  fire. 
Several  circumstances  are  stated  in  the  case,  as  to  the  agent's 
calling  for  them,  waiting,  and  at  last  leaving  the  depot  before 
they  were  ready.  But  we  consider  them  all  immaterial.  The 
argument  strongly  urged  was,  that  the  responsibility  of  common 
carriers  remained  until  the  agent  of  the  consignee  had  an  oppor- 
tunity to  take  them  and  remove  them.  But  we  think  the  rule 
is  otherwise.  It  is  stated,  as  a  circumstance,  that  the  train  ar- 
rived that  day  at  a  later  hour  than  usual.  This  we  think  im- 
material; the  corporation  do  not  stipulate  that  the  goods  shall 
arrive  at  any  particular  time.    Further,  from  the  very  necessity 

450 


M'MILLAN  V.  M.  S.  AND  N.  I.  E.  E.  CO.      §§  113,  114 

of  the  case  and  the  exigencies  of  the  railroad,  the  corporation 
must  often  avail  themselves  of  the  night,  when  the  road  is  less 
occupied  for  passenger  cars;  so  that  goods  may  arrive  and  be 
unladen  at  an  unsuitable  hour  in  the  night  to  have  the  depot 
open  for  the  delivery  of  the  goods.  We  think,  therefore,  that 
it  would  be  alike  contrary  to  the  contract  of  the  parties  and  the 
nature  of  the  carriers'  duty  to  hold  that  they  shall  be  respon- 
sible as  common  carriers,  until  the  owner  has  practically  an  op- 
portunity to  come  with  his  v/agon  and  take  the  goods;  and  it 
would  greatly  mar  the  simplicity  and  efficacy  of  the  rule  that 
delivery  from  the  cars  into  the  depot  terminates  the  transit.  If 
therefore,  for  any  cause  the  consignee  is  not  at  the  place  to  re- 
ceive his  goods  from  the  car  as  unladen,  and  in  consequence 
of  this  they  are  placed  in  the  depot,  the  transit  ceases.  In 
point  of  fact,  the  agent  might  have  received  the  second  parcel 
of  goods  in  the  course  of  the  afternon  on  Monday,  but  not 
early  enough  to  be  carried  to  the  warehouses  at  which  he  was 
to  deliver  them;  that  is,  not  early  enough  to  suit  his  conven- 
ience. But  for  the  reasons  stated,  we  have  thought  this  cir- 
cumstance immaterial,  and  do  not  place  our  decision  for  the  de- 
fendants, in  regard  to  this  second  parcel,  on  that  ground. 
Judgm'^nt  for  the  defendants. 


114.    M'MILLAN  V.  MICHIGAN  SOUTHERN  AND  NORTH- 
ERN INDIANA  RAILROAD  CO., 

16  Mich.  79;  93  Am.  D.  208.    1867. 

By  Court,  Cooley,  J.  (After  deciding  that  defendant  rail- 
road was  subject  to  the  general  railroad  law  of  the  state  by 
which  it  was  not  permitted  to  abridge  its  common-law  liability 
as  common  carrier.)  Wliat  that  liability  is,  when  they  have 
transported  property  over  their  road  and  deposited  it  in  their 
warehouse  to  await  delivery  to  the  consignee,  is  the  next  ques- 
tion demanding  consideration. 

On  this  point,  three  distinct  views  have  been  taken  by  dif- 
ferent jurists,  neither  of  which  can  be  said  to  have  been  so  far 
generally  accepted  as  to  have  become  the  prevailing  rule  of 
the  courts. 

1.  That  when  the  transit  is  ended,  and  the  carrier  has  placed 
the  goods  in  his  warehouse  to  await  delivery  to  the  consignee, 
his  liability  as  carrier  is  ended  also,  and  he  is  responsible  as 
warehouseman  only.  This  is  the  rule  of  the  Massachusetts 
cases:     Thomas  v.  Boston  etc.  R.  R.  Co.,  10  Met.   (Mass.)  472, 

451 


§  11-1  TEEMINATION  OF  CAEKIEE'S  EELATION. 

43  Am.  D.  444,  and  Norway  Plains  Co.  v.  Boston  and  Maine 
E.  R.  Co.,  1  Gray  (Mass.)  263,  61  Am.  D.  423,  and  those  whic^ 
follow  them. 

2.  That  merely  placing  the  goods  in  the  warehouse  does  not 
discharge  the  carrier,  but  that  he  remains  liable  as  such  until 
the  consignee  has  had  reasonable  time  after  their  arrival  to 
inspect  and  take  them  away  in  the  common  course  of  busi- 
ness :  Morris  and  Essex  R.  R.  Co.  v.  Ayres,  29  N.  J.  L.  393,  80 
Am.  D.  215;  Blumenthal  v.  Brainerd,  38  Vt.  413,  91  Am.  D.  350; 
Moses  V.  Boston  and  Maine  R.  R.  Co.,  32  N.  H.  523,  69  Am.  D. 
331 ;  Wood  V.  Crocker,  18  AVis.  345,  86  Am.  D.  773 ;  Redfield  on 
Railways,  3d  ed.,  sec.  157. 

3.  That  the  liability  of  the  carrier  continues  until  the  con- 
signee has  been  notified  of  the  receipt  of  the  goods,  and  has 
had  reasonable  time  in  the  common  course  of  business  to  take 
them  away  after  such  notification:  McDonald  v.  "Western  R. 
R.  Corp.,  34  N.  Y.  497,  and  cases  cited ;  2  Parsons  on  Contracts, 
5th  ed.,  189;  Angell  on  Carriers,  sec.  313;  Chitty  on  Carriers, 
90. 

The  rule  as  secondly  above  stated  proceeds  upon  the  idea 
that  the  consignee  will  be  informed  by  the  consignor  of  any 
shipment  of  freight,  and  that  it  then  becomes  the  duty  of  the 
former  to  take  notice  of  the  general  course  of  business  of  the 
carrier,  the  time  of  departure  and  arrival  of  trains,  and  when, 
therefore,  the  receipt  of  the  freight  may  be  expected,  and  to 
be  on  hand  ready  to  take  it  away  when  received.  It  is  as- 
sumed to  be  simply  a  question  of  reasonable  diligence  with 
the  consignee  whether  he  ascertains  the  receipt  of  his  consign- 
ment or  not;  the  regularity  of  the  trains  being  such  as  to 
leave  him  without  reasonable  excuse,  if  he  fails  to  inform  him- 
self. 

There  may  be  railroad  lines  in  the  country  where  the  appli- 
cation of  this  rule  would  do  injustice  to  no  one.  If  the  busi- 
ness is  not  so  great  but  that  freight  trains  can  be  run  with  the 
same  regularity  as  those  for  passengers,  and  the  freight  can  al- 
ways be  sent  forward  immediately  on  being  received  for  the 
purpose,  a  notice  from  the  consignor  will  usually  apprise  the 
consignee  with  sufficient  certainty  when  the  goods  may  be 
expected.  But  on  the  long  through  lines  such  regularity  is 
quite  impracticable.  Freight  must  be  sent  forward  from  the 
carrier's  warehouse  with  a  promptness  depending  upon  the 
pressure  of  business;  or  in  other  words,  as  it  may  suit  his 
convenience  and  his  interest  to  forward  it.  This  may  be  many 
days,  or  even  weeks,  after  its  receipt,  or  it  may  be  immediately. 
•z  is  not  always  in  the  power  of  the  carrier  to  give  reliable 

4D2 


M'MILLAN  V.  M.  S.  AND  N.  I.  E.  E.  CO.  §  114 

information  upon  the  subject,  and  unavoidable  delays  will  fre- 
quently intervene  after  the  transit  has  commenced.  To  re- 
quire the  consignee  to  watch  from  day  to  day  the  arrival  of 
trains,  and  to  renew  his  inquiries  respecting  the  consignment, 
seems  to  me  to  be  imposing  a  burden  upon  him  without  in  the 
least  relieving  the  carrier.  For  it  can  hardly  be  doubted  that 
it  would  be  less  burdensome  to  the  carrier  to  be  required  to 
give  notice  than  to  be  subjected  to  the  numberless  inquiries  and 
examinations  of  his  books  which  would  otherwise  be  necessary, 
especially  at  important  points. 

The  rule  that  the  liability  of  the  carrier  shall  continue  until 
the  consignee  has  had  reasonable  time  after  notification  to 
take  away  his  goods  is  traceable  to  certain  English  decisions 
having  reference  to  carriers  by  water,  whose  mode  of  doing 
business  resembles  that  of  railroad  companies  in  the  inability 
to  proceed  with  their  vehicles  to  every  man's  door,  and  there 
deliver  his  goods.  It  is  a  modification  in  favor  of  the  carrier 
by  land  of  the  obligation  formerly  resting  upon  him,  and  which 
required,  in  the  absence  of  special  contract,  an  actual  delivery 
to  the  consignee  of  the  goods  carried.  The  modern  modes  of 
transportation  render  this  impracticable,  unless  the  carrier  shall 
add  to  his  business  that  of  drayman  also,  which  is  generally  a 
distinct  employment.  In  lieu  of  delivery,  therefore,  the  carrier 
is  allowed  to  discharge  himself  of  his  extraordinary  liability 
by  notifying  the  consignee  of  the  receipt  of  the  goods,  who  is 
then  expected,  in  accordance  with  what  is  an  almost  universal 
custom,  to  remove  them  himself.  It  is  insisted,  however,  that 
this  rule,  so  far  as  it  can  be  considered  established  by  authority, 
is  applicable  onty  to  carriers  who  have  no  warehouses  of  their 
own,  but  make  the  wharf  or  platform  their  place  of  delivery, 
and  who  therefore  never  become  warehousemen,  and  are  held 
to  a  continued  liability  as  carriers,  as  the  only  mode  of  insur- 
ing watch  and  protection  over  the  goods  until  the  owner  can 
have  opportunity  to  receive  them.  This  distinction  would  not 
be  entirely  without  force,  and  would  seem  to  be  acted  upon  in 
one  state  at  least.  Compare  Scholes  v.  Ackerland,  13  111.  650, 
and  Crawford  v.  Clark,  15  Id.  561,  with  Eichards  v.  Michigan 
etc.  R.  R.  Co.,  20  Id.  404,  and  Porter  v.  C.  &  R.  I.  R.  R. 
Co.,  20  Id.  407.  See  also  Chicago  etc.  R.  R.  Co.  v.  Warren,  16 
111.  502,  63  Am.  D.  317,  where  a  railroad  company  was  held  to 
the  same  measure  of  responsibility  as  a  carrier  by  water,  where 
the  property  carried,  instead  of  being  placed  in  their  warehouse, 
■»vas  left  outside. 

But  it  may  well  be  doubted  whether  the  distinction  rests  upon 
sufficient  reasons.     The  man  who  sends  his  goods  by  railroad 

453 


§  114  TEKMINATIOX  OF  CAKEIEE'S  EELATIOX. 

and  who  desires  to  receive  them  as  soon  as  they  reach  their 
destination,  has  commonly  no  design  to  employ  the  railroad 
company  in  any  other  capacity  than  that  of  carrier.  If  any 
other  relation  than  that  is  formed  between  them,  it  is  one  that 
the  law  forms  upon  considerations  springing  from  the  usages 
of  business,  and  having  reference  to  the  due  protection  of  the 
interests  of  both.  The  owner  wants  storage  only  imtil  he  can 
have  time  to  remove  the  goods;  and  the  warehousing  is  only 
incidental  to  the  carrying.  Payment  for  the  transportation 
is  payment  also  for  the  incidental  storage.  The  owner  has 
been  willing  to  trust  the  company  as  carriers  because  the  law 
makes  them  insurers ;  but  he  might  not  be  willing  to  trust  them 
as  warehousemen  under  a  liability  so  greatly  qualified,  and  in 
a  trust  which  implies  generally  a  considerable  degree  of  per- 
sonal confidence.  As  what  he  desires  is,  not  to  have  the  goods 
remain  in  store,  but  to  receive  them  personally  as  soon  as  they 
can  be  carried,  and  as  the  railroad  company,  if  they  had  no 
warehouse,  would  continue  to  be  liable  as  carriers  until  the 
lapse  of  a  reasonable  time  after  notification,  it  would  seem  that 
if  the  company  can  claim  any'  exemption  from  the  liability  as 
insurers,  it  must  be, upon  the  ground  that  the  erection  of  ware- 
houses is  for  the  benefit,  not  of  the  company,  but  of  the  public 
doing  business  with  them,  and  to  facilitate  delivery.  But  this, 
as  appears  to  me,  would  be  taking  a  very  partial  and  one-sided 
view  of  the  purpose  of  these  structures. 

If  the  road  has  no  warehouse,  the  cars  must  remain  stand- 
ing on  the  track  until  the  owner  can  come  and  receive  his  goods, 
or  if  they  are  unloaded,  the  company  must  not  only  establish 
a  watch  to  prevent  thefts,  but  at  their  peril  must  protect 
against  injuries  by  the  elements.  Landing  the  goods  on  the 
platform,  it  is  agreed  on  all  hands,  does  not  alone  discharge  the 
carrier.  And  it  seems  to  me  that  a  consideration  of  the  im- 
mense carrying  trade  of  the  country  will  force  one  to  the  con- 
clusion that  it  cannot  possibly  be  either  properly,  expeditiously, 
or  profitably  done  except  with  the  conveniences  afforded  by  the 
railroad  warehouses,  which  afford  the  easiest,  cheapest,  and  most 
effective  means  by  which  carriers  are  enabled  to  protect  them- 
selves against  losses  in  that  capacity. 

At  the  great  centers  of  commerce  it  would  be  impossible  to 
transact  the  amount  of  business  now  done  if  the  cars  must 
stand  upon  the  track  until  the  goods  carried  can  be  delivered 
from  thence  to  the  consignees.  Unloading  them  in  immense 
quantities  upon  open  platforms  would  expose  them  to  destruc- 
tion. At  the  less  important  points  the  same  thing  is  true,  but 
in  less  degree.     It  would  seem,  therefore,  looking  only  to  the 

454 


M'MILLAN  V.  M.  S.  AND  N.  I.  E.  R.  CO.  §  114 

interest  of  the  carriers,  that  the  reasons  which  require  the  con- 
struction of  warehouses  are  imperative.  Only  by  means  of 
them  can  they  keep  their  tracks  clear  for  trains,  or  protect 
against  the  destruction  of  goods  of  which  they  are  insurers. 
And  wherever  the  business  is  large,  warehouses  are  required 
also,  to  enable  the  companies  to  carry  out  a  system  of  separa- 
tion and  classification  of  goods  received,  without  which  it  would 
be  quite  impossible  to  conduct  the  business  with  facility  or 
profit.  The  warehouses  are  absolutely  essential  in  connection 
with  the  receipt  and  dispatch  of  goods  to  be  sent  from  each 
point,  and  in  respect  to  which  the  railroad  company  are  un- 
questionably liable  as  carriers  from  the  time  of  their  receipt. 
In  every  view,  therefore,  they  seem  indispensable  to  the  busi- 
ness of  the  carrier;  and  being  constructed  with  reference  to  it, 
they  are  properly  nothing  more  than  an  extension  of  the  plat- 
forms upon  which  the  companies  receive  and  deliver  goods, 
with  walls  and  roofs  added  to  facilitate,  guard,  and  to  protect 
against  injuries  by  the  elements. 

The  interest,  on  the  other  hand,  which  the  consignee  has  in 
the  warehouse,  is  much  less  direct  and  important.  It  may 
facilitate  the  delivery  of  goods,  but  the  carrier  is  liable  if  he 
fail  to  deliver  in  reasonable  time.  The  risk  of  loss  and  injury 
will  be  less,  but  against  these  the  carrier  insures.  In  no  proper 
sense  can  the  warehouse  be  said  to  be  for  his  accommodation ; 
and  if  the  obligations  of  the  carrier  to  him  are  to  be  dimin- 
ished by  its  erection,  he  might  well  prefer  that  it  should  not 
be  built.  The  rule  which  changes  the  carrier  into  a  ware- 
houseman against  the  will  of  the  owner  of  the  property,  on  the 
ground  solely  that  he  had  erected  convenient  structures  for 
the  storage,  but  which  structures  are  absolutely  essential  to 
his  business  as  carrier,  seems  to  me  to  be  a  departure  from 
the  rule  of  the  common  law  upon  reasons  which  do  not  war- 
rant it.  It  is  a  rule  which  allows  the  insurer  to  absolve  him- 
self from  obligations  to  the  insured,  by  supplying  him  with 
conveniences  for  the  transaction  of  his  business,  and  with  the 
means  of  protection  against  loss  or  damage. 

A  critical  examination  of  the  cases  on  this  subject  would 
scarcely  be  useful.  As  they  cannot  be  reconciled,  the  court 
must  follow  its  own  reasons.  I  am  unable  to  discover  any 
ground  which  to  me  is  satisfactory  on  which  a  common  car- 
rier of  goods  can  excuse  himself  from  personal  delivery  to  the 
consignee,  except  by  that  which  usage  has  made  a  substitute. 
To  require  him  to  give  notice  when  the  goods  are  received,  so 
that  the  consignee  may  know  when  to  call  for  them,  imposes 
upon  him  no  unreasonable  burden.     If  by  understanding  with 

455 


§  114  TERMINATION  OF  CAEEIEE'S  RELATION. 

the  consignee  the  goods  were  to  remain  in  store  for  a  definite 
period,  or  until  he  should  give  directions  concerning  them,  the 
rule  would  be  different,  because  the  relation  of  warehouseman 
would  then  be  established  by  consent.  In  the  absence  of  such 
understanding,  sound  policy,  I  think,  requires  the  carrier  to 
be  held  liable  as  such  until  he  has  notified  the  consignee  that 
the  goods  are  received.  If  the  nature  of  the  bailment  then 
becomes  changed  through  the  neglect  of  the  consignee  to  re- 
move the  goods,  it  will  be  by  his  implied  assent.  Such  a  rule 
is  just  to  both  parties,  and  burdensome  to  neither,  and  it  will 
tend  to  promptness  on  the  part  of  carriers  in  giving  the  notices, 
which,  Avhether  compulsory  or  not,  are  generally  expected  from 
them. 

Whether  the  clause  in  the  general  railroad  law  forbidding 
companies  formed  under  it  from  lessening  or  abridging  their 
common-law  liability  as  carriers  prevents  their  entering  into 
contracts  by  which  their  employers  release  them  from  any  of 
their  liability,  is  not  clear  upon  the  terms  of  the  clause  itself. 
Such  contracts  are  not  expressly  forbidden,  and  the  general 
tendency  of  legislation  in  modern  times  has  been  to  relax, 
rather  than  to  render  more  severe,  the  strict  rules  of  the  com- 
mon law  in  regard  to  carriers,  of  which  our  own  state  presents 
an  example  in  the  legislative  exemption  of  the  principal  com- 
panies from  liability  as  carriers  for  goods  in  their  warehouses 
awaiting  delivery.  And  a  clause  which  should  forbid  parties 
from  entering  into  any  such  agreements  with  carriers  as  they 
might  conceive  to  be  for  their  interest  would  hardly  be  looked 
for  in  the  general  law,  unless  strong  reasons  were  known  to 
have  existed  for  its  adoption. 

When  that  law  was  passed,  a  controversy  had  been  going 
on  between  common  carriers  and  the  public  in  respect  to  the 
notices  given  by  the  former  by  public  advertisement  and  other- 
wise, by  which  they  sought  to  relieve  themselves  from  some 
portion  of  their  common-law  liability,  whether  those  employ- 
ing them  assented  or  not.  The  courts  in  this  country  had  gen- 
erally held  these  notices  ineffectual;  but  they  still  continued 
to  be  given,  and  to  be  insisted  upon  as  possessing  legal  force. 
I  do  not  perceive  in  the  clause  in  question  any  intention  to 
go  further  than  to  put  an  end  by  the  fundamental  law  of 
these  organizations  to  any  further  controversy  upon  that  ground. 
In  view  of  the  extent  to  which  the  courts  had  gone  in  Eng- 
land in  giving  force  to  such  notices,  no  one  can  say  that  the 
precaution  was  needless.  The  companies  are  forbidden  to  lessen 
or  in  any  way  abridge  their  liabilities  as  common  carriers,  but 
the  person  sending  goods  by  them  is  not  forbidden  to  release 

456 


M  'MILLAN  V.  M,  S.  AND  N.  I.  E.  E.  CO.  §  114 

tliem  from  such  liatilities,  or  from  any  portion  thereof,  for 
any  consideration  which  to  him  is  satisfactory.  In  other 
words,  the  law  compels  these  companies  at  all  times,  at  the 
option  of  those  sending  goods  by  them,  to  carry  the  goods  as 
insurers.  If,  on  the  other  hand,  the  carriers  can  make  it  for 
the  interest  of  the  party  to  relieve  them  from  this  liability  wholly 
or  in  part,  a  contract  to  that  effect,  if  fairly  made,  and  em- 
bracing no  unreasonable  conditions,  is  not  opposed  to  public 
policy,  and  to  forbid  it  would  seem  an  unnecessary  restraint 
upon  freedom  of  action:  See  Bissell  v.  New  York  Cent.  R.  R. 
Co.,  25  N.  Y.  448,  82  Am.  D.  369.  The  distinction  between  a 
restriction  by  the  carrier  himself  and  a  contract  by  which 
another  party  releases  him  from  obligations  was  pointed  out  by 
this  court  in  Michigan  Cent.  R.  R.  v.  Hale,  6  Mich.  243,  and 
is  the  same  which  is  applicable  here.  ]\Iany  things  are  trans- 
ported by  railroad  in  respect  to  which  it  may  be  for  the  mutual 
interest  of  both  parties  that  special  contracts  be  made.  Live 
stock  are  usually  accompanied  and  cared  for  by  the  owner 
or  his  agent  under  special  agreements,  and  in  some  other  cases 
the  owner  prefers  to  assume  such  general  oversight  and  control 
as  is  inconsistent  with  the  full  common-law  liability  of  the 
carrier.  It  has  not  been  generally  supposed  that  the  clause 
under  consideration  forbade  special  contracts  in  such  cases,  and 
the  legislature  of  1867  must  have  considered  them  lawful  when 
they  provided  that  all  contracts  modifying  the  common-law  lia- 
bility of  railroad  companies  as  carriers  should  be  wholly  in 
writing:  Laws  1867,  p.  165.  This  enactment  was  evidently 
designed,  not  to  enlarge  the  powers  of  railroad  companies,  but 
to  impose  restraints  upon  an  existing  authority  to  make  con- 
tracts. 

A  much  more  difficult  question  is,  what  shall  constitute  the 
proof  of  a  contract,  in  the  absence  of  distinct  evidence  that 
the  parties  have  consulted  and  agreed  upon  terms.  The  prac- 
tical difficulty,  amounting  almost  to  an  impossibility,  of  bring- 
ing the  carrier  and  his  employer  together  on  every  occasion 
for  the  discussion  of  terms,  has  led  to  the  adoption  by  carriers 
of  a  printed  form  of  contract,  which  is  put  into  the  hands  of 
the  consignor,  and  by  its  terms  purports  to  bind  him  to  its 
conditions;  but  it  is  strongly  insisted  that  there  ought  to  be 
more  satisfactory  evidence  of  assent  on  the  part  of  the  con- 
signor to  modify  any  of  his  common-law  rights  than  is  derived 
from  the  mere  receipt  of  a  paper  from  the  carrier,  framed  to 
suit  the  interest  of  the  latter,  and  which  the  consignor  may 
never  have  read. 

There  are  some  matters  in  respect  to  which  the  carrier  may 

457 


§  114  TEEMINATION  OF  CAERIEE'S  RELATION. 

qualify  liis  liability  by  mere  notice.  Mr.  Greenleaf  says:  "It 
is  now  well  settled  that  a  common  carrier  may  qualify  his 
liability  by  a  general  notice  to  all  who  may  employ  him,  of 
any  reasonable  requisition  to  be  observed  on  their  part,  in 
regard  to  the  manner  of  delivery  and  entry  of  parcels,  and  the 
information  to  be  given  to  him  of  their  contents,  the  rates  of 
freight,  and  the  like;  as,  for  example,  that  he  will  not  be  re- 
sponsible for  goods  above  the  value  of  a  certain  sum,  unless 
they  are  entered  as  such,  and  paid  for  accordingly":  2  Greenl. 
Ev.,  sec.  235;  see  Western  Transportation  Co.  v.  Newhall,  24 
111.  466,  76  Am.  D.  760.  These  are  but  the  reasonable  regu- 
lations which  every  man  should  be  allowed  to  establish  for 
his  business,  to  insure  regularity  and  promptness,  and  to  prop- 
erly inform  him  of  the  responsibility  he  assumes.  And  it  has 
been  held  that  notice  derived  from  the  usage  of  the  carrier 
may  determine  the  manner  in  which  he  is  authorized  to  make 
delivery:  Farmers'  and  Mechanics'  Bank  v.  Champlain  Trans. 
Co.,  16  Vt.  52,  42  Am.  D.  491;  18  Vt.  131;  23  Id.  186, 
56  Am.  D.  68.  But  beyond  the  establishment  of  such  rules, 
the  force  of  a  mere  notice  cannot  extend.  Subject  to  reason- 
able regulations,  every  man  has  a  right  to  insist  that  his  prop- 
erty, if  of  such  description  as  the  carrier  assumes  to  convey, 
shall  be  transported  subject  to  the  common-law  liability.  "A 
common  carrier  has  no  right  to  refuse  goods  offered  for  car- 
riage at  the  proper  time  and  place,  on  tender  of  the  usual  and 
reasonable  compensation,  unless  the  owner  will  consent  to  his 
receiving  them  under  a  reduced  liability;  and  the  owner  can 
insist  on  his  receiving  the  goods  under  all  the  risks  and  re- 
sponsibilities which  the  law  annexes  to  his  employment":  Pierce 
on  Railroads,  416;  see  Hollister  v.  Nowlen,  19  Wend.  (N.  Y.) 
234,  32  Am.  D.  455;  Cole  v.  Goodwin,  19  Wend.  (N.  Y.)  251, 
32  Am.  D.  470;  Jones  v.  Voorhees,  10  Ohio,  145;  Bennett  v. 
Button,  10  N.  H.  487;  New  Jersey  Steam  Navigation  Co.  v. 
Merchants'  Bank,  6  How.  382;  Moses  v.  Boston  etc.  R.  R.  Co., 
24  N.  H.  71,  55  Am.  D.  222 ;  Kimball  v.  Rutland  etc.  R.  R.  Co., 
26  Vt.  256,  62  Am.  D.  576;  Slocum  v.  Fairchild,  7  Hill,  292; 
Dorr  V.  New  Jersey  Steam  Nav.  Co.,  4  Sand.  (N.  Y.)  136,  11 
N.  Y.  485,  62  Am.  D.  125 ;  Michigan  Cent.  R.  R.  Co.  v.  Hale,  6 
Mich.  243.  The  fact  that  a  restrictive  notice  is  shown  to  have 
been  actually  received  or  seen  by  the  owner  of  the  goods  will 
not  raise  a  presumption  that  he  assents  to  its  terms,  since  it  is 
as  reasonable  to  infer  that  he  intends  to  insist  on  his  rights  as 
that  he  assents  to  their  qualification,  and  the  burden  of  proof 
is  upon  the  carrier  to  establish  the  contract  qualifying  his  lia- 

458 


M 'MILL AN  V.  M.  S.  AND  N.  I.  E.  E.  CO;  §  114 

bility,  if  he  claims  that  one  exists :    New  Jersey  Steam  Naviga- 
tion Co.  V.  Merchants'  Bank,  6  How.  382,  per  Nelson,  J. 

The  evidence  of  such  a  contract  in  the  present  case  consists: 
1.  Of  the  defendant's  mode  of  doing  business;  and  2.  Of  what 
are  called  in  the  case  bills  of  lading,  and  which  contain  the 
supposed  limitations.  It  is  admitted  by  the  plaintiffs  that  the 
bills  of  lading  in  use  by  these  defendants,  and  all  the  con- 
tracts of  affreightment,  the  instructions  to  agents,  and  the 
printed  rules  posted  in  all  the  depots  and  station-houses  of 
defendants  for  the  past  ten  years,  have  contained  clauses  ex- 
empting them  from  liability  or  loss  by  fire,  and  providing  that 
when  goods  are  in  the  depot  awaiting  delivery  to  consignees 
the  company  will  be  liable  as  warehousemen  only,  and  not  as 
carriers;  and  that  plaintiffs  have  been  accustomed  to  do  busi- 
ness with  defendants,  and  to  receive  and  send  goods  over  their 
road  under  bills  of  lading  of  this  description. 

There  are  several  reasons  why  knowledge  in  plaintiffs  of 
defendants'  usage  to  make  restrictive  contracts  cannot  control 
the  present  case.  In  the  first  place,  knowledge  of  such  usage 
can  in  no  case  of  the  kind  be  allowed  force  beyond  that  which 
could  be  given  to  notice  of  an  intention  on  the  part  of  the  car- 
rier to  restrict  his  liability,  brought  home  to  the  party  in  any 
other  mode;  and  we  have  already  seen  that  the  force  of  such 
notices  is  exceedingly  circiunscribed.  And  it  can  hardly  be 
seriously  claimed  that  the  plaintiffs,  by  accepting  restrictive 
contracts  in  some  cases,  have  thereby  debarred  themselves  from 
insisting  upon  their  common-law  rights  thereafter.  In  the  second 
place,  the  defendants  have  no  power  under  the  law  to  establish 
a  usage  restricting  their  liability,  as  that  would  come  directly 
in  conflict  with  the  clause  in  the  general  railroad  law  heretofore 
quoted.  And  in  the  third  place,  if  this  were  otherwise,  the 
usage  would  be  irrelevant  to  the  present  case,  since  the  proof 
relates  to  dealings  between  the  parties  to  this  suit  at  Detroit, 
and  to  usages  understood  by  the  plaintiffs  there,  while  the  con- 
tracts here  in  question  were  in  each  instance  made  with  con- 
signors at  a  distance,  and  in  most  cases  by  other  railroad  com- 
panies, whose  usages  do  not  seem  to  be  uniform. 

It  remains  to  be  seen  whether  the  conditions  embodied  in 
the  bills  of  lading  are  to  be  treated  as  a  part  of  the  contract 
for  transportation,  and  to  be  regarded  as  assented  to  by  the 
consignors,  notwithstanding  they  may  not  have  read  them. 

A  bill  of  lading  proper  is  the  written  acknowledgment  of 
the  master  of  a  vessel  that  he  has  received  specified  goods 
from  the  shipper  to  be  conveyed  on  the  terms  therein  expressed 
to  their  destination  and  there  delivered  to  the  parties  therein 

459 


§  114  TEEMINATION  OF  CAEEIEE'S  EELATION. 

designated:  Abbott  on  Shipping,  322.  It  constitutes  the  con- 
tract between  the  parties  in  respect  to  the  transportation;  and 
is  the  measure  of  their  rights  and  liabilities,  unless  where  fraud 
or  mistake  can  be  shown:  Redfield  on  Railways,  307-309,  and 
notes;  Angell  on  Carriers,  sec.  223.  It  has  acquired  from 
usage  a  negotiable  character,  and  the  carrier  may  be  estopped 
as  against  the  indorsee  for  value  from  showing  mistakes  in 
giving  it:  Redfield  on  Railways,  307.  Whether  the  contracts 
which  railroad  companies  are  accustomed  to  give  on  the  receipt 
of  goods  for  transportation,  and  which  are  usually  called  by  the 
same  name,  are  subject  to  all  the  same  incidents  as  the  bills  of 
lading  proper,  we  need  not  now  consider;  but  it  will  not  be  dis- 
puted that  they  fix  the  rights  and  liabilities  of  the  parties  when 
their  terms  have  been  agreed  upon,  and  it  is,  I  think,  the  weight 
of  authority,  and  certainly  the  rule  in  this  state,  that  the  car- 
rier may  stipulate  in  them  for  a  limitation  of  his  common-law 
liability :  Michigan  Central  R.  R.  Co.  v.  Hale,  6  Mich.  243. 

Bills  of  lading  are  signed  by  the  carrier  only;  and  where  a 
contract  is  to  be  signed  only  by  one  party,  the  evidence  of 
assent  to  its  terms  by  the  other  party  consists  usually  in  his 
receiving  and  acting  upon  it.  This  is  the  case  with  deeds- 
poll,  and  with  various  classes  of  familiar  contracts,  and  the 
evidence  of  assent  derived  from  the  acceptance  of  the  con- 
tract, without  objection,  is  commonly  conclusive.  I  do  not 
perceive  that  bills  of  lading  stand  upon  any  different  footing. 
If  the  carrier  should  cause  limitations  upon  his  liability  to  be 
inserted  in  the  contract  in  such  a  manner  as  not  to  attract  the 
consignor's  attention,  the  question  of  assent  might  fairly  be 
considered  an  open  one :  Brown  v.  Eastern  R.  R.  Co.,  11  Cush. 
97;  and  if  delivery  of  the  bill  of  lading  was  made  to  the  con- 
signor under  such  circumstances  as  to  lead  him  to  suppose 
it  to  be  something  else, — as,  for  instance,  a  mere  receipt  for 
money, — it  could  not  be  held  binding  upon  him  as  a  contract, 
inasmuch  as  it  had  never  been  delivered  to  and  accepted  by 
him  as  such:  King  v.  Woodbridge,  34  Vt.  565.  But  except  in 
these  and  similar  cases,  it  cannot  become  a  material  question 
whether  the  consignor  read  the  bill  of  lading  or  not.  The 
ground  upon  which  it  is  claimed  that  this  becomes  important 
seems  to  be  that  parties  generally  receive  these  contracts  with- 
out reading  them  or  inquiring  into  their  terms, — taking  what- 
ever the  railroad  companies  see  fit  to  give  them;  and  that  they 
are  thus  liable  to  be  imposed  upon  and  defrauded,  unless  the 
courts  interfere  to  protect  them.  Or,  if  we  may  be  allowed  to 
state  the  same  thing  in  different  words,  as  everybody  is  negli- 
gent in  these  matters,  and  will  not  give  the  necessary  attention 

460 


M'MILLAN  V.  M.  S.  AND  N.  I.  R.  R.  CO.  §  114 

to  their  contracts  that  is  essential  to  the  protection  of  their 
interests,  the  courts  must  interfere  to  set  them  aside  wherever 
extraneous  evidence  of  actual  assent  is  not  produced.  If  the 
courts  possess  any  such  power,  and  it  is  expedient  to  exercise 
it,  it  may  be  important  to  consider,  at  the  outset,  whither  it 
will  lead  us.  Bills  of  lading  are  not  the  only  contracts  that 
are  received  in  this  careless  way.  Deeds,  mortgages,  and  bills 
of  sale  are  every  day  given  and  received  without  being  read 
by  the  parties,  though  they  may  contain  provisions  which 
have  not  been  the  subject  of  special  negotiation.  Policies  of 
insurance,  which  more  nearly  resemble  the  instruments  now 
in  question,  are  still  more  often  received  without  examination. 
In  the  absence  of  fraud,  accident,  or  mistake,  no  one  ever  sup- 
posed it  was  competent  for  the  courts  to  reform  such  instru- 
ments in  behalf  of  a  party  who  would  not  inform  himself  of 
their  purport.  Nothing  would  be  certain  or  reliable  in  busi- 
ness transactions  if  contracts  were  liable  to  be  set  aside  on 
grounds  like  these.  The  law  does  not  assume  to  be  the  guar- 
dian of  parties  compotes  mentes  in  respect  to  the  lawful  con- 
tracts which  they  may  make,  but  it  proceeds  upon  the  idea 
that  where  fraud  has  not  been  practiced,  and  mistake  has  not 
intervened,  the  general  interests  of  the  community  are  best 
subserved  by  leaving  every  man  to  the  protection  of  his  own 
observation  and  diligence. 

It  is  argued  that  the  consignor  had  no  occasion  to  examine 
the  bill  of  lading,  because  he  had  a  right  to  suppose  it  recog- 
nized the  common-law  liability.  But  the  common  law  does 
not  establish  the  rates  of  freight,  or  the  place  of  delivery;  and 
for  stipulations  respecting  these,  at  least,  every  man  must 
isxamine  his  bill  of  lading.  Moreover,  we  cannot  overlook  the 
facts  that  a  large  proportion  of  these  instruments  are  issued 
with  restrictive  clauses,  and  that  carriers  arrange  their  tariffs 
of  freights  in  the  expectation  that  they  will  be  accepted.  These 
facts  are  so  well  understood  that  a  person  exercising  ordinary 
diligence  in  his  own  affairs  would  not  be  likely  to  accept  one 
of  these  instruments  without  examination,  if  he  expected  to 
hold  the  carrier  to  the  liability  which  would  rest  upon  him  in 
the  absence  of  special  contract. 

I  do  not  find  any  case  in  which  a  court  has  assumed  to  set 
aside  such  a  contract  on  the  ground  that  the  party  had  failed 
to  read  it.  An  exemption  from  liability  from  losses  arising 
from  specified  causes,  when  embodied  in  the  bill  of  lading, 
has  been  frequently  recognized  as  a  part  of  the  contract,  though 
it  did  not  distinctly  appear  to  have  been  brought  to  the  con- 
signor's notice:    Davidson  v.  Graham,  2  Ohio  St.  131;  Parsons 

461 


§  114  TERMINATION  OF  CAREIER'S  RELATION. 

V.  Monteath,  13  Barb.  353;  York  Co.  v.  Central  R.  R.  Co.,  3 
Wall.  107 ;  Dorr  v.  New  Jersey  Steam  Navigation  Co.,  11  N.  Y. 
491,  62  Am.  D.  125 ;  and  in  the  case  last  referred  to,  it  is  said 
that  the  exemption,  when  embodied  in  the  bill  of  lading,  must  be 
deemed  to  have  been  assented  to  by  the  parties.  The  same  pre- 
sumption would  seem  to  have  been  acted  upon  in  Moore  v. 
Evans,  14  Barb.  524;  Kallman  v.  United  States  Express  Co.,  3 
Kan.  205,  and  Whitesides  v.  Thurlkill,  20  Miss.  599,  51  Am.  D. 
128 ;  and  it  is  in  accordance  with  the  general  rule  applicable  to 
written  contracts. 

It  is  said,  however,  that  these  special  contracts  must  be  held 
void  for  want  of  consideration  unless  it  is  shown  that,  in  re- 
turn for  the  release  of  the  carrier  from  his  extraordinary  lia- 
bility, he  on  his  part  has  made  a  deduction  in  the  rates  of  freight. 
What  does  appear  in  the  present  case  is,  that  the  carrier,  in 
consideration  of  the  promise  by  the  consignor  to  release  him 
from  certain  liabilities,  and  to  pay  him  certain  moneys,  agrees 
on  his  part  to  carry  the  goods  for  the  sum  named.  I  do  not 
see  how  we  can  assume  that  the  charges  are  the  same  that 
they  would  have  been  had  the  release  been  omitted.  If  by  the 
charter  of  a  railroad  corporation  maximum  rates  had  been  es- 
tablished, and  the  corporation  had  attempted  to  charge  these 
rates  for  a  restricted  liability,  a  case  would  be  presented  com- 
ing within  the  principle  of  this  objection :  Bissell  v.  New  York 
Central  R.  R.  Co.,  25  N.  Y.  449,  82  Am.  D.  369,  per  Selden, 
J. ;  but  no  such  case  is  before  us  here,  and  a  consideration 
appears  which,  for  aught  that  is  shown  by  the  record  is  suffi- 
cient. 

It  was  also  said  on  the  argument  that  a  ru.e  such  as  we  have 
now  laid  down  would  place  the  public  at  the  mercy  of  the 
railroad  companies,  who  would  refuse  to  give  any  other  than 
restricted  bills  of  lading.  It  is  enough  for  us  to  say  in  this 
case  that  railroad  companies  chartered  as  common  carriers 
have  no  such  power,  and  the  consignor  can  assent  to  the  re- 
striction in  each  instance,  or  refuse  to  assent,  at  his  option. 
If  the  corporations  decline  to  transport  goods  as  common  car- 
riers when  that  is  the  condition  upon  which  they  hold  their 
franchises,  there  would  be  no  difficulty,  I  apprehend,  in  apply- 
ing the  proper  remedy. 

It  will  now  be  necessary  to  examine  the  various  bills  of  lad- 
ing in  reference  to  the  particular  limitations  which  they  con- 
tain. Two  of  those  given  by  the'  Cincinnati,  Hamilton  and 
Dayton  Railroad  Company  contain  no  restrictions;  the  other 
excepts  against  liability  for  "unavoidable  accident  and  fire  in 
depot."    Those  issued  by  the  defendants  contain,  among  others, 

462 


M'MILLAN  V.  M.  S.  AND  N.  I.  E.  E.  CO.  §  114 

a  similar  exception.  It  is  claimed  by  the  plaintiffs  that  these 
and  similar  exceptions  will  not  shield  the  defendants,  because 
the  loss  in  the  present  case  was  the  result  of  the  negligence  of 
their  officers  or  servants,  against  liability  for  which  it  was  not 
lawful  for  them  to  contract. 

Whether  the  rule  that  a  carrier,  on  grounds  of  public  policy, 
is  not  to  be  permitted  to  contract  for  exemption  from  liability 
for  his  own  negligence  (Fairchild  v.  Slocum,  19  Wend.  329 ; 
York  Company  v.  Central  R.  R.  Co.,  3  Wall.  113 ;  3  Parsons  on 
Contracts,  5th  ed.,  249),  can  properly  be  so  extended  as  to  pre- 
vent corporations  contracting  against  liabilty  for  the  negli- 
gence of  their  officers  or  servants,  or  any  classes  of  them,  and  if 
not,  then  whether  the  general  words  of  exemption  here  em- 
ployed ought  to  be  construed  to  embrace  the  negligence  of  such 
officers  and  servants  (Wells  v.  New  Jersey  Steam  Navigation 
Co.,  8  N.  Y.  379;  Schieffelin  v.  Harvey,  6  Johns.  (N.  Y.)  179, 
5  Am.  D.  206;  Alexander  v.  Greene,  7  Hill,  533),  are  questions 
I  do  not  care  to  discuss  in  this  case,  inasmuch  as  I  think  no 
such  negligence  is  shown. 

What  was  relied  upon  was  the  fact  that  barrels  of  benzine 
were  carried  over  the  road  of  defendants,  landed  in  their  depot 
at  Detroit,  and  then  passed  over  to  the  Detroit  and  Milwaukee 
Railroad  Company,  which  occupied  the  other  end  of  the  same 
warehouse;  that  some  of  these  barrels  were  in  a  leaky  condi- 
tion; and  that  while  being  handled  by  the  employees  of  the 
latter  company  the  escaping  gas  took  fire  from  a  lantern,  and 
resulted  in  the  destruction  of  the  warehouse  and  its  contents. 
From  this  it  appears  that  the  fire  took  place  after  the  inflam- 
mable fluid  had  passed  out  of  the  hands  of  the  defendants. 
The  fact  that  they  had  carried  it  over  their  road  had  nothing 
to  do  with  its  ignition.  If  it  should  be  conceded  to  be  negli- 
gence in  the  company  to  receive  so  dangerous  an  article  among 
their  freiglrts,  yet  if  no  loss  resulted  while  it  remained  in  their 
custody,  it  would  be  difficult  to  hold  them  responsible  for  acci- 
dents happening  from  its  subsequent  handling.  When  the 
Detroit  and  Milwaukee  company  received  it  upon  their  prem- 
ises, it  was  of  no  consequence  from  whence  it  came,  and  any 
accident  which  might  result  would  have  no  relation  to  the  source 
from  which  it  was  received.  It  would  be  as  legitimate  to  hold 
a  merchant  responsible  from  whom  it  might  have  been  bought 
as  the  carrier  from  whom  it  had  been  accepted.  If  we  are  to 
trace  causes  back,  we  need  not  stop  at  the  preceding  carrier,  but, 
with  similar  reason,  might  hold  the  man  liable  who  made  the 
leaky  barrels,  or  the  person  from  whom  the  first  carrier  re- 
ceived them  filled.     The  law  can  only  look  at  the  proximate 

463 


§  114  TEEMINATION  OF  CAEEIEE'S  KELATION. 

causes  of  an  injury,  and  not  at  those  remote  circumstances  that 
may  have  contributed  to  those  causes:  Ohnsted  v.  Brown,  12 
Barb.  657;  Butler  v.  Kent,  19  Johns.  (N.  Y.)  223,  10  Am.  D. 
219 ;  Whatly  v.  Murrell,  1  Strob.  389 ;  Matthews  v.  Pass,  19  Ga. 
141;  Piatt  V.  Potts,  13  Ired.  (N.  C.)  455,  53  Am,  D.  412. 

Some  question  was  made  on  the  argument  whether  the  con- 
signors can  be  held,  in  the  absence  of  explicit  evidence  on  the 
subject,  to  have  authority  to  enter  into  special  coni;racts  with 
the  carrier  which  shall  be  binding  on  the  consignee.  His  au- 
thority, I  think,  is  to  be  presumed;  and  the  carrier  is  under  no 
obligation  to  inquire  into  it:  Moriarty  v.  Harnden,  1  Daly, 
227.  It  is  a  question  of  more  difficulty  whethet  the  Ohio  bills 
of  lading  would  govern  the  transportation  for  the  whole  route. 
By  their  terms  the  Cincinnati,  Hamilton  and  Dayton  Railroad 
Company  acknowledge  the  receipt  of  the  goods  in  good  order, 
to  be  delivered  in  like  good  order  "at  Toledo  for  Detroit," 
unto  the  plaintiffs  or  their  assigns,  they  paying  freight.  No 
evidence  is  given  of  any  custom  that  these  contracts  shall  govern 
the  whole  distance ;  nor  does  the  case  show  whether  the  rates  of 
freight  specified  are  for  the  delivery  at  Toledo  or  at  Detroit. 
The  words  employed  only  import  that  the  goods  are  to  be  carried 
to  Toledo,  and  from  thence  forwarded;  and  in  the  absence  of 
any  special  custom  on  the  subject,  it  would  seem  that  the  com- 
pany giving  these  bills  fully  discharged  their  duty  when  they 
had  delivered  the  goods  to  the  defendants  at  Toledo. 

There  is  a  number  of  English  eases  in  which  it  has  been 
held,  where  carriers  received  goods  and  gave  receipt  therefor, 
which  specified  that  they  were  received  to  be  sent  to  a  point 
beyond  their  line,  and  there  delivered  to  the  consignee,  that 
the  contract  was  one  for  transportation  the  whole  distance, 
upon  which  the  first  carrier  might  be  sued  for  a  loss  occurring 
after  the  goods  had  passed  out  of  his  hands :  Muschamp  v. 
Lancaster  R.  R.  Co.,  8  Mees.  &  W.  421 ;  Collins  v.  Bristol  etc. 
R.  R.  Co.,  11  Ex.  790;  S.  C.  in  House  of  Lords,  5  Hurl.  &  N. 
969.  The  same  ruling  has  been  made  in  this  country,  where 
the  carrier  had  expressly  agreed  to  carry  to  a  point  beyond 
his  line,  for  a  compensation  specified :  Wilcox  v.  Parmelee,  3 
Sand.  610;  Mallory  v.  Burrett,  1  E.  D.  Smith,  234;  Noyes  v. 
Rutland  etc.  R.  R.  Co.,  27  Vt.  110.  But  the  doctrine  generally 
accepted  by  the  American  courts  is,  that  where  a  carrier  re- 
ceives goods  marked  for  a  particular  designation  beyond  his 
line,  and  does  not  expressly  undertake  to  deliver  them  at  the 
point  designated,  the  implied  contract  is  only  to  transport  over 
his  own  line  and  forward  from  its  terminus :  Ackley  v.  Kellogg, 
8  Cow.  223 ;  Van  Santvoord  v.  St.  John,  6  Hill,  157 ;  Hood  v. 

464 


M'MILLAN  V.  M.  S.  AND  N.  I.  E.  E.  CO.  §  114 

New  York  etc.  R.  R.  Co.,  22  Conn.  1 ;  Elmore  v.  Naugatnck  R. 
R.  Co.,  23  Conn.  457,  63  Am.  D.  143;  Farmers'  and  M.  Bank  v. 
Champlain  Trans.  Co.,  23  Vt.  209,  56  Am.  D.  68;  Brintnall  v. 
Saratoga  R.  R.  Co.,  32  Vt.  665 ;  Nutting  v.  Connecticut  River  R. 
R.  Co.,  1  Gray,  502;  Briggs  v.  Boston  etc.  R.  R.  Co.,  6  Allen 
(Mass.)  246,  83  Am.  D.  626;  Perkins  v.  Portland  etc.  R.  R.  Co., 
47  Me.  573,  74  Am.  D.  507 ;  American  note  to  11  Exch.  797.  And 
see  Angle  v.  Mississippi  etc.  R.  R.  Co.,  9  Iowa,  487. 

In  the  case  of  1  Gray  the  defendants  receipted  the  goods 
at  a  station  on  their  line  ''for  transportation  to  New  York," — 
a  point  beyond  their  line.  No  connection  in  business  was 
shown  between  them  and  any  other  railroad  company.  The 
defendants  were  accustomed  to  receive  pay  only  over  their 
own  road.  The  goods  in  question  were  delivered  to  a  connect- 
ing line,  but  only  a  portion  of  them  reached  New  York.  The 
defendants  were  held  not  liable,  on  the  ground  that  their  un- 
dertaking was  to  carry  over  their  own  road  only.  Whether 
the  receipt  of  freight  by  them  for  the  whole  distance  would 
have  affected  their  liability  may  perhaps  be  an  open  question 
on  the  authorities.  That  circumstance  has  evidently  been  re- 
garded as  important  in  some  cases:  See  Weed  v.  Saratoga 
etc.  R.  R.  Co.,  19  Wend.  537,  and  Redfield  on  Railways,  286, 
and  note ;  but  in  Hood  v.  New  York  etc.  R.  R.  Co.,  22  Conn.  1, 
the  first  carriers,  who  received  payment  for  transportation 
over  the  connecting  line,  were  regarded  as  having  received  it 
as  agent  only,  and  not  as  compensation  for  an  undertaking  by 
themselves  to  transport  over  such  line. 

In  the  present  case,  it  is  not  shown  that  any  connection  in 
business  exists  between  the  defendants  and  the  Cincinnati,  Ham- 
ilton and  Dayton  Railroad  Company.  It  is  admitted  that  the 
latter  company  "is  one  of  those  forming  a  transportation  route 
from  Cincinnati  to  the  city  of  Detroit";  but  this  would  be  true 
whether  the  companies  had  business  connections  or  not.  It 
does  not  appear  that  the  freight  was  paid,  and  the  contrary 
is  inferable.  It  does  not  even  appear  that  the  charges  agreed 
upon  were  for  the  whole  route;  and  if  they  were,  the  case  I 
think  would  not  be  affected  by  that  circumstance.  The  only 
consequence  would  be  to  make  the  whole  freight  payable  to 
the  defendants,  who  would  deduct  their  own  charges,  and  pay 
over  to  the  Ohio  company  what  remained.  Fixing  upon  the 
price  would  only  amount  to  an  agreement  by  the  Ohio  com- 
pany that  the  whole  charges  should  not  exceed  that  sum.  In 
the  absence  of  agreement  between  the  two  companies  on  the 
subject,  the  defendants  would  not  be  compelled  to  conform 
their  own  rates  to  those  agreed  upon  at  Cincinnati. 
30  465 


§  114  TEEMINATION  OF  CAEEIEE'S  EELATION. 

On  this  record  as  it  stands,  I  think  we  must  hold  that  the 
bills  of  lading  given  at  Cincinnati  were  fully  complied  with 
when  the  Cincinnati,  Hamilton  and  Dayton  Company  had 
carried  the  goods  to  Toledo,  and  there  delivered  them  to  the 
defendants.  If  there  is  any  exception  to  this  statem.ent,  it 
must  relate  to  the  rates  of  freight;  but  even  as  to  those,  the 
undertaking  of  the  Ohio  company  would  not  bind  the  defend- 
ants unless  authority  to  bind  them  was  shown.  As  there  is 
no  evidence  on  that  point,  I  think  the  defendants  received  the 
goods  at  Toledo  to  be  carried  to  Detroit  under  their  liability  as 
carriers  at  the  common  law,  and  with  the  right  to  make  such 
reasonable  charges  as  their  regulations  may  have  prescribed. 
If  reasonable  charges  over  their  own  line  would  exceed  the 
amount  specified, — and  which  would  appear  by  the  way-bill, — 
they  might  refuse  to  receive  the  goods  except  upon  prepay- 
ment; but  if  they  received  and  carried  them  with  a  notifica- 
tion that  certain  rates  only  were  to  be  charged  for  the  whole 
transportation,  they  would  doubtless  be  limited  in  their  col- 
lection to  that  sum.  But  one  company  cannot  possess  power, 
arbitrarily  and  in  the  absence  of  consent,  to  fix  the  rates  for 
transportation  by  another,  on  the  ground  solely  that  the  two 
form  a  continuous  line  between  two  points.  It  must  be  equally 
without  power  to  make  contracts  diminishing  the  common- 
law  liability  of  the  other;  inasmuch  as  all  such  contracts 
must  be  based  upon  a  consideration,  which  only  the  party 
himself  or  his  agent  duly  authorized  is  competent  to  agree 
upon.  If  the  bills  of  lading  in  terms  applied  to  the  carriage 
for  the  whole  distance,  we  should  be  required  to  hold,  I  think, 
that  the  defendants  adopted  their  terms  and  consented  to  be 
bound  by  them  when  they  received  and  carried  the  goods 
under  them;  but  I  have  already  said  that  such  is  not  the  case 
in  respect  to  the  particular  bills  now  under  consideration. 

I  think,  therefore,  that  the  defendants  should  be  held  liable 
for  the  wine,  candles,  and  tobacco  shipped  from  Cincinnati, 
unless  the  plaintiffs  had  been  duly  notified  of  their  receipt  at 
Detroit,  and  had  had  reasonable  time  after  notice  to  remove 
them  before  the  fire  had  occurred.  It  is  admitted  that  no 
notice  was  given  of  the  receipt  of  the  wine  and  candles,  but  of 
the  arrival  of  the  tobacco  the  plaintiffs  were  notified  about  half- 
past  three  o'clock  in  the  afternoon  of  the  26th  of  April.  The 
defendants  were  in  the  habit  of  closing  their  depot  at  six  P.  M. 
The  fire  occurred  on  the  same  evening.  I  am  of  opinion  that 
a  reasonable  time  was  not  afforded  for  the  removal  after  the 
notice.  It  might  not  be  proper  to  attempt  to  lay  down  any 
general  rule  as  to  what  shall  constitute  reasonable  notice  in 

466 


BUliLAED  V.  AMERICAN  EXPRESS  CO.      §§  114,  115 

these  cases,  Avhere  the  record  discloses  so  little  which  bears 
upon  the  point;  but  it  seems  quite  clear  to  my  mind  that  two 
hours  and  a  half  are  not  sufficient,  especially  in  view  of  the 
notice  which  defendants  give  to  consignees, — that  they  will 
charge  for  storage  after  twenty-four  hours, — which  may  pos- 
sibly have  led  to  a  general  impression  that  the  relation  of 
warehousemen  was  not  to  be  considered  as  established  until  the 
expiration  of  that  time.  I  think,  therefore,  the  plaintiffs  should 
have  judgment  for  the  value  of  the  tobacco  also.  For  the  eggs 
delivered  to  the  defendants  at  Adrian  and  Hudson,  under  an 
exemption  from  liability  for  losses  in  consequence  of  fire  in  the 
depot,  the  defendants  cannot  be  held  liable  under  the  principles 
hereinbefore  stated. 

Christiancy,  J.,  concurred. 


115.     BULLARD  V.  AMERICAN  EXPRESS  CO., 
107  Mich.  695;  65  N.  W.  B.  551;  61  Am.  St.  R.  358.     1895. 

Case,  against  an  express  company  for  damages  caused  by  the 
refusal  of  defendant  to  collect  and  deliver  packages  at  his  place 
of  business.    Verdict  directed  by  court  for  defendant. 

Montgomery,  J.  This  is  an  action  in  case,  commenced  in 
justice's  court.  The  declaration,  in  substance,  alleges  that  plain- 
tiff is  a  large  shipper  of  celery  by  express  from  Kalamazoo 
to  places  throughout  the  United  States,  upon  lines  of  the  de- 
fendant, a  common  carrier;  that  the  defendant,  to  collect  celery 
and  other  articles  for  shipment  in  the  city  of  Kalamazoo,  and 
to  deliver  packages  received  by  it,  maintains  and  employs  a  large 
number  of  men,  horses  and  wagons;  that  since  December  1, 
1893,  plaintiff's  place  of  business  has  been  at  No.  506  Douglas 
Avenue,  in  said  city;  that  during  the  celery  season  plaintiff 
makes  large  daily  shipments  over  defendant's  lines,  and  has  con- 
signed to  him  packages  of  money  in  payment  of  celery  shipped 
C.  O.  D.,  and  other  articles,  of  all  of  which  defendant  had 
notice;  that  plaintiff  repeatedly  requested  defendant  to  call 
at  his  place  of  business  for  his  shipments,  and  to  deliver  pack- 
ages to  him,  which  defendant  refused  to  do;  that  defendant 
collects  for  shipment  from  and  delivers  to  a  large  number  of 
shippers  of  celery  and  other  articles,  under  substantially  the 
same  circumstances,  conditions,  and  situation  as  the  plaintiff, 
and  for  shippers  at  a  greater  distance  from  his  place  of  business 
than  plaintiff's  place,  and  for  shippers  in  the  same  locality  as  the 
plaintiff,  and  has  unlawfully  discriminated  against  the  plaintiff 

467 


§  115  TEEMINATION  OF  CAREIEE'S  EELATION. 

by  such  refusal ;  that  plaintiff  has  been  damaged  by  being  com- 
pelled to  convey  his  celery  to  defendant's  office  for  shipment,  and 
procure  his  packages  from  its  office.  The  plaintiff  had  judgment 
in  the  justice's  court.  In  the  circuit  court  the  court  directed 
a  verdict  for  the  defendant. 

The  evidence  on  the  trial  showed  that  the  defendant's  agents, 
acting  in  unison  with  the  agents  of  other  express  companies, 
had  established  limits  in  the  city,  beyond  which  they  did  not  go 
to  receive  goods  for  shipment  or  to  deliver  packages.  In  some 
instances  these  limits  extended  a  greater  distance  from  the  de- 
fendant's office  than  plaintiff's  place  of  business.  It  was  also 
in  evidence  that  plaintiff  knew  of  these  limits  before  moving 
into  his  present  place  of  business,  and  before  transacting  the 
business  with  defendant  in  which  the  inconvenience  arose  which, 
it  is  alleged,  caused  damage  to  plaintiff. 

At  the  common  law,  a  carrier  of  goods  was  not  bound  to  ac- 
cept delivery  at  any  place  other  than  his  place  of  business,  or 
the  line  of  travel,  in  the  absence  of  a  custom  of  receiving  goods 
at  other  places :  Hutchinson  on  Carriers,  sees.  82,  87 ;  Blanchard 
V.  Isaacs,  3  Barb.  388.  But  it  is  insisted  that  the  defendant  in 
this  case,  having  practiced  the  custom  of  receiving  goods  for 
shipment  at  other  points  in  the  city  than  its  office,  was  bound 
to  furnish  equal  facilities  to  all  shippers  who  occupy  a  similar 
position.  We  are  not  impressed  with  the  force  of  this  reason- 
ing, as  applied  to  the  facts  in  this  case.  We  are  cited  to  no 
case  in  which  it  has  been  held  that  a  carrier  is  bound  to  go  be- 
yond its  line  to  receive  goods,  and,  while  it  would  not  be  com- 
petent for  a  common  carrier  to  discriminate  against  shippers 
within  its  fixed  limits,  it  is  not  perceived  why,  if  the  company 
is  entitled  to  limit  its  receipt  of  goods  to  its  own  office  or  place 
of  business,  it  may  not  enlarge  these  limits  at  its  discretion, 
without  being  bound  to  go  beyond  them. 

The  duty  to  deliver  to  the  consignee  is  somewhat  broader. 
Carriers  on  land,  receiving  packages,  were,  at  the  common  law, 
generally  bound  to  deliver  to  the  consignee,  at  his  residence  or 
place  of  business.  This  rule  has  not  been  applied  to  carriers  by 
water,  or  railroad  companies,  which  must,  of  necessity,  be  con- 
fined to  a  fixed  route.  It  has  been  said,  however,  that  express 
companies  owe  their  origin  to  this  very  fact,  and  that  the  nature 
of  their  business  is  to  furnish  a  means  of  transportation  and 
delivery  to  the  consignee:  Wood's  Browne  on  Carriers,  sec. 
230 ;  Hutchinson  on  Carriers,  sec.  379.  The  question  of  how  far 
this  duty  may  be  escaped  by  usage  is  not  well  settled.  It  has 
been  held,  however,  that  when  the  business  of  an  office  is  so 
small  that  the  company  cannot  or  does  not  keep  a  messenger  to 

468 


SWEET  V.  BARNEY.  §§  115,  116 

make  personal  delivery,  it  is  not  unreasonable  to  require  the 
consignee  to  call  at  the  office:  Hutchinson  on  Carriers,  sec, 
380.  If  this  may  be  done,  it  would  seem  to  follow  that  the 
company  may,  so  long  as  the  public  have  notice  of  the  custom, 
fix  limits  beyond  which  its  agents  are  not  required  to  go  for 
delivery.  If  it  cannot  do  this,  it  is  difficult  to  say  where  would 
be  the  limit.  It  is  clear  that  a  reasonable  limit  is  not  in  all  cases 
the  city  limit.  Conditions  are  often  varied.  If  not  the  city 
limit,  can  it  be  said  that  a  certain  number  of  miles  from  the 
office,  in  either  direction,  would  be  a  reasonable  limit?  We 
think,  where  the  company,  in  apparent  good  faith,  has  assumed 
to  fix  limits,  having  regard  to  the  public  requirements,  that, 
with  regard  to  persons  who  have  dealt  with  it  having  knowledge 
of  this  fact,  it  is  not  bound  to  deliver  beyond  these  limits.  We 
do  not  determine  what  the  rights  of  one  not  having  knowledge 
of  these  limits  would  be.  This  is  not  such  a  case.  But  in  this 
case  we  think  the  court  committed  no  error  in  directing  a  ver- 
dict for  the  defendant. 

Judgment  will  be  affirmed. 

Long,  Grant,  and  Hooker,  JJ.,  concurred. 

McGrath,  C.  J.,  did  not  sit. 


116.     SWEET  V.  BARNEY, 

23  N.  r.  335.     1861. 

Action  against  an  express  company  as  a  common  carrier  for 
the  value  of  a  package  of  money  delivered  to  defendants,  di- 
rected to  ''People's  Bank,  173  Canal  St.,  New  York."  The 
plaintiffs,  bankers  in  Dansville,  sent  the  package,  containing 
$2,892  to  their  correspondent,  the  People's  Bank,  in  New  York 
city.  The  express  company  delivered  it  at  their  office  in  that 
city  to  one  Messenger,  an  employee  of  the  People's  Bank,  who 
had  within  18  days  previous  to  the  delivery  of  this  package  re- 
ceived nine  other  packages  in  similar  manner  without  objection 
from  the  bank.  This  package  was  stolen  by  him.  Defendants 
had  a  verdict  at  the  circuit,  which  was  affirmed  at  the  general 
term  by  the  Supreme  Court  in  the  seventh  district.  Appeal  to 
Court  of  Appeals. 

James.  J.  That  these  defendants  were  common  carriers  can 
hardly  be  doubted.  Persons  whose  business  it  is  to  receive 
packages  of  bullion,  coin,  bank  notes,  commercial  paper  and 
such  other  articles  of  value  as  parties  see  fit  to  trust  to  their 
care  for  the  purpose  of  transporting  the  same  from  one  place 

469 


§  116  TEBMINATION  OF  CAEEIEE  'S  EELATION. 

to  another  for  a  compensation,  are  common  carriers,  and  re- 
sponsible as  such  for  the  safe  delivery  of  property  intrusted 
to  them.  (Russell  v.  Livingston,  19  Barb.  346;  Sherman  v. 
Wells,  28  Id.  403.)  Such  was  the  business  of  these  defendants, 
and  such  their  responsibility. 

The  consignee  is  the  presumptive  owner  of  the  thing  con- 
signed; and  when  the  carrier  is  not  advised  that  any  different 
relation  exists,  he  is  bound  so  to  treat  the  consignee;  but  this 
presumption  may  be  rebutted;  and  if  in  an  action  for  non-de- 
livery by  the  consignor  against  the  carrier,  that  presumption 
be  overcome,  the  action  is  properly  brought  in  the  consignor's 
name.  (Price  v.  Powell,  3  N.  Y.  322.)  But  in  this  case,  unless 
a  delivery  of  the  money  be  established,  the  plaintiffs'  right  to 
recover  was  made  out. 

There  was  no  notice  that  the  contents  of  the  package  in  ques- 
tion belonged  to  the  consignors ;  nor  was  there  any  fact  proved, 
calculated  to  weaken  the  presumption  of  ownership  in  the  con- 
signee. The  defendants  were,  therefore,  not  only  authorized 
but  fully  justified  in  treating  the  consignment  as  the  property 
of  the  bank.  The  defendants  could  not  know  that  they  were 
employed  to  make  a  deposit  in  the  "People's  Bank"  for  the 
benefit  of  the  assignors;  or  that  this  package  was  entitled  to  or 
demanded  a  special  delivery.  There  was,  in  fact,  nothing  in  the 
transaction  to  advise  them  that  this  package  was  to  be  treated 
differently  from  other  packages  actually  belonging  to  the  bank ; 
and,  therefore,  any  delivery  good  against  the  bank  discharged 
the  carrier. 

The  principal  question  then  is,  was  there  a  delivery  good 
against  the  bank?  If  there  was,  the  plaintiffs  must  follow  the 
bank;  they  have  no  cause  of  action  against  these  defendants. 
It  is  conceded  that  the  liability  of  a  carrier  begins  with  the  re- 
ceipt of  the  goods  by  him,  and  continues  until  the  delivery  of 
the  goods  by  him,  subject  to  the  general  exceptions.  And  an 
express  carrier  is  bound  to  deliver  the  goods  at  their  destined 
place,  to  the  consignee,  or  as  the  consignee  may  direct.  In  gen- 
eral, the  delivery  must  be  to  the  owner  or  consignee  himself, 
or  to  his  agent  (11  Mete.  509),  or  they  must  be  carried  to  his 
residence,  or  they  may  be  taken  to  his  place  of  business,  when 
from  the  nature  of  the  parcels  that  is  the  appropriate  place  for 
their  delivery.  But  there  is  no  rule  of  law  requiring  a  delivery 
at  the  consignee's  residence  or  place  of  business,  when  he  is 
willing  to  accept  it  at  a  different  place,  or  directs  a  delivery  at 
another  place.  The  consignee,  or  his  authorized  agent,  may 
receive  goods  addressed  to  him  in  the  hands  of  a  carrier  at  any 
place,  either  before  or  after  their  arrival  at  their  place  of  des- 

470 


HASSE  V.  AMEEICAN  EXPEESS  CO.  §§  116,  117 

tination,  and  such  acceptance  operates  as  a  discharge  of  the 
carrier  from  his  liability.  (Omitting  a  citation  from  Lewis  v. 
Western  R.  Corp.,  11  Mete.  509.) 

Had  the  consignee  in  this  case  received  the  package  in  ques- 
tion at  the  defendants'  office  I  think  no  one  would  doubt  the  de- 
fendants were  discharged.  The  case  then  turns  upon  Messen- 
ger's agency.  If  an  authorized  agent  in  the  premises,  a  delivery 
to  him  was  as  effectual  as  a  delivery  to  the  principal.  The 
question  of  agency  was  a  question  of  fact,  and  was  settled  by 
the  verdict  of  the  jury. 

We  think  the  delivery  at  the  office  of  the  defendants  to  the 
authorized  agent  of  the  consignee  was  proper,  and  operated 
to  discharge  the  defendants  from  their  obligations  as  carriers. 

This  disposes  of  the  case  unless  there  was  some  error  com- 
mitted at  Circuit  in  submitting  the  question  of  Messenger's  au- 
thority to  the  jury,  or  in  the  courts  refusing  to  charge  as  re- 
quested. I  have  been  unable  to  discover  any  such  error.  The 
evidence  submitted  was  competent — it  was  of  the  most  perfect 
and  satisfactory  kind,  and  not  only  justified  but  required  the 
verdict  rendered.    The  judgment  should  be  affirmed. 


117.     HASSE  V.  AMERICAN  EXPRESS  CO., 

94  Mich.  133;  53  N.  W.  Rep.  918;  34  Am.  St.  E.  32S.    1892. 

Action  against  defendants  as  common  carriers.  Plaintiffs  are 
clothiers  in  Detroit.  They  sent  three  parcels  of  clothing  marked 
"C.  O.  D.,"  addressed,  respectively,  to  McMillan,  Wick  and 
Hart,  Marquette.  The  first  two  were  not  at  home,  but  returned 
in  about  ten  days,  and  went  to  the  express  office  and  notified 
the  agent  to  hold  the  package  another  week  and  they  would  pay 
for  the  goods  and  take  the  same.  Hart  was  unknown  to  the 
company,  and  failed  to  respond  to  a  written  notice  sent  through 
the  mail.  On  the  day  that  Mc^Millan  and  Wick  called,  the  ex- 
press agent  notified  plaintiffs  by  mail  of  these  facts,  and  that 
the  packages  remained  in  the  office  unpaid.  That  night,  and 
before  the  notices  reached  plaintiffs,  the  express  office  and  the 
three  parcels  were  destroyed  by  fire.  There  was  no  fault  on  the 
part  of  defendants.    Verdict  was  directed  for  plaintiffs. 

Grant,  J.  (After  stating  the  facts.)  The  defendant's  con- 
tract as  common  carrier  was  to  safely  carry  the  goods  to  their 
destination,  to  notify  the  consignees  of  their  arrival,  and  to  offer 
delivery  upon  payment  of  the  amounts.  This  duty  it  had  fully 
performed,  and  with  such  performance  its  liability  as  a  common 

47X 


§§  117,118    TEEMINATION  OF  CAREIEE'S  EELATION. 

carrier  terminated.  Its  further  duty  was  to  safely  store  and 
care  for  the  goods,  hold  them  a  reasonable  time  to  enable  the 
consignees  to  pay,  if  they  were  not  ready  to  pay  immediately, 
and  then  to  notify  the  consignors.  The  liability  meanwhile  was 
that  of  warehouseman :  Hutchinson  on  Carriers,  sec.  392 ;  Weed 
V.  Barney,  45  N.  Y.  344,  6  Am.  R.  96 ;  Zinn  v.  New  Jersey  Steam- 
boat Co.,  49  N.  Y.  442,  10  Am.  R.  402;  Adams  Express  Co.  v. 
Darnell,  31  Ind.  20,  99  Am.  D.  582 ;  Marshall  v.  American  Ex- 
press Co.,  7  Wis.  1,  73  Am.  D.  381. 

In  Weed  v.  Barney,  45  N.  Y.  344,  6  Am.  R.  96,  the  goods  were 
sent  C.  O.  D.,  arrived  at  their  destination  March  17th,  the 
consignees  were  promptly  notified,  and  promised  to  take  and 
pay  for  them,  and  the  goods  remained  in  the  storehouse  .until 
April  16th,  when  they  were  destroyed  by  an  explosion  without 
the  fault  of  the  defendants.  No  notice  had  meanwhile  been 
given  to  the  consignor.    It  was  held  that  no  notice  was  essential. 

It  is  a  matter  of  common  knowledge  that  those  sending  goods 
by  express  with  instruction  to  collect  their  value  before  delivery 
expect  express  companies  to  retain  them  in  order  to  give  the 
consignees  an  opportunity  to  pay  for  and  take  the  goods.  Con- 
signors so  sending  goods  understand  that  the  goods  must  be 
deposited  in  the  storehouses  of  these  companies.  There  is  no 
reason,  under  such  circumstances,  in  holding  these  companies 
to  the  strict  liability  of  common  carriers.  We  think  that  under 
the  agreed  facts  in  this  case  the  defendant  is  not  liable. 

Judgment  reversed,  and  judgment  entered  here  for  the  de- 
fendant :  with  costs  of  both  courts. 


y^  118.     PACIFIC  EXPRESS  CO.  V.  SHEARER, 

160  ni.  215;  43  N.  E.  R.  816;  52  Am.  St.  B.  324.    1896. 

Action  to  recover  from  the  express  company  $4,000  delivered 
by  it  to  an  imposter.  One  Stubblefield  had  had  business  deal- 
ings as  a  stockbuyer  with  Shearer  &  Co.,  and  they  had  frequently 
made  him  advances  of  money  by  draft,  letter  of  credit  or  ex- 
press. Stubblefield  arrived  at  Chepota,  Kansas,  late  one  night 
and  retired  at  a  hotel,  without  registering,  and  next  morning  left 
Chepota.  Another  man  got  off  the  same  train  and  went  to 
another  hotel.  Next  day  this  last  man  claimed  that  his  name  was 
Stubblefield,  went  to  the  telegraph  office  and  telegraphed  Shearer 
&  Co.  to  express  him  $4,000.  He  received  an  answer  by  tele- 
graph with  a  request  for  particulars,  to  which  he  telegraphed, 
"Bought  240  corn  fed  Texas,  top  of  300,  at  $20  a  head."    He 

472 


PACIFIC  EXPRESS  CO.  v.  SHEARER.  §  118 

also  ordered  stock  ears  on  a  side  track  for  receiving  cattle  for 
Stubblefield,  and  informed  the  landlord  of  his  arrangements. 
Later  he  called  at  the  express  office  for  the  package.  Asked  to 
identify  himself,  he  stated  his  name,  his  initials,  the  amount  of 
the  money,  and  exhibited  the  telegrams,  and  some  accounts  of 
sales  of  stock  between  Stubblefield  and  Shearer  &  Co.  He  also 
brought  the  landlord  to  testify  to  his  identity,  and  to  the  fact 
that  he  had  stock  cars  on  the  side  track  awaiting  his  shipments. 
The  money  was  thereupon  paid  to  him.  The  fraud  was  not  dis- 
covered until  too  late  to  prevent  delivery  of  the  package  to  the 
imposter.    Plaintiff  recovered  below. 

Craig,  C.  J.  (After  stating  some  of  the  instructions  and  re- 
fusals to  instruct.)  It  is  apparent  from  the  record  that  the  pack- 
age was  delivered  to  the  person  in  response  to  whose  telegraphic 
order  appellees  sent  the  package,  appellees  at  the  time  believing 
such  person  to  be  J.  C.  Stubblefield ;  and  it  is,  no  doubt,  also  true 
that,  at  the  time  of  delivery,  the  agent  of  appellant  ascertained 
that  the  person  who  demanded  the  package,  and  to  whom  it  was 
delivered,  was  the  person  in  response  to  whose  order  appellees 
sent  the  same,  and  that  appellees  treated  the  order  for  the  money 
as  the  order  of  J.  C.  Stubblefield;  and  it  may  also  be  true  that 
the  agent  used  reasonable  diligence  to  ascertain  the  identity  of 
the  person  who  demanded  the  package  before  it  was  delivered. 
Would  these  facts  relieve  the  carrier  of  liability  for  delivering 
the  package  to  a  person  to  whom  it  was  not  consigned? 

In  Hutchinson  on  Carriers,  section  344,  the  rule  with  refer- 
ence to  delivery  is  stated  as  follows:  "No  circumstance  of  fraud, 
imposition,  or  mistake  wall  excuse  the  common  carrier  from  re- 
sponsibility for  a  delivery  to  the  wrong  person.  The  law  exacts 
of  him  absolute  certainty  that  the  person  to  whom  the  delivery 
is  made  is  the  party  rightfully  entitled  to  the  goods,  and  puts 
upon  him  the  entire  risk  of  mistakes  in  this  respect,  no  matter 
from  what  cause  occasioned,  however  justifiable  the  delivery  may 
seem  to  have  been,  or  however  satisfactory  the  circumstances  or 
proof  of  identity  may  have  been  to  his  mind,  and  no  excuse  has 
ever  been  allowed  for  a  delivery  to  a  person  for  whom  the  goods 
were  not  directed  or  consigned." 

In  United  States  Exp.  Co.  v.  Hutchins,  67  111.  348,  350,  where 
an  action  was  brought  against  the  express  company  for  its  fail- 
ure to  deliver  a  package  of  money  left  with  it  to  be  carried  and 
delivered,  this  court  said  in  regard  to  the  liability  of  the  com- 
pany: "They  became  insurers  for  its  safe  delivery.  Being  so, 
nothing  can  excuse  them  from  their  obligation  safely  to  carry 
and  deliver,  but  the  act  of  God  or  the  public  enemy.    This  rule 

473 


§  118  TEEMINATION  OF  CAEEIEE'S  EELATION. 

of  the  common  law,  the  rigid  application  of  which  has  given  so 
much  satisfaction  and  security  to  the  commerce  of  nations,  is 
properly  invoked  in  cases  like  this." 

In  Baldwin  v.  American  Exp.  Co.,  23  111.  197,  74  Am.  Dec. 
190,  where  an  action  was  brought  against  the  company  to  recover 
the  value  of  a  package  of  money  which  it,  as  common  carrier, 
undertook  to  carry  from  Chicago  to  Madison,  Wisconsin,  and 
deliver  to  a  certain  named  person,  it  was  held  to  be  the  set- 
tled doctrine  of  England  and  of  this  country  that  there  must  be 
an  actual  delivery  to  the  proper  person,  and  in  no  other  way  can 
the  company  discharge  itself  of  responsibility  as  a  common  car- 
rier, except  by  proving  that  it  has  performed  such  engagement, 
or  has  been  excused  from  the  performance  of  it,  or  been  pre- 
vented by  the  act  of  God  or  the  public  enemy.  After  citing  au- 
thorities in  support  of  this  position,  it  is  said :  "  It  is  necessary, 
in  order  to  give  one  security  to  property,  this  rigid  rule  should 
obtain,  and  it  has  for  years  been  enforced  against  common  car- 
riers. They  are  considered  as  insurers,  and  are  under  that  re- 
sponsibility."  In  Gulliver  v.  Adams  Exp.  Co.,  38  111.  503,  the 
rule  announced  in  the  case  last  cited  was  sanctioned  and  ap- 
proved. 

In  American  etc.  Exp.  Co.  v.  Milk,  73  111.  224,  an  action  was 
brought  against  the  company  to  recover  for  a  package  of  money 
delivered  to  the  company  in  Du  Page  county,  to  be  forwarded  to 
Kankakee.  When  the  package  arrived  at  its  destination,  the 
agent  of  the  company  delivered  it  to  a  certain  person  on  a  forged 
order  of  the  consignee.  It  was  held  that  it  is  the  duty  of  an  ex- 
press company,  upon  receiving  a  package  of  money  to  be  for- 
warded, to  safely  carry  and  deliver  it  to  the  consignee,  and  the 
only  way  it  can  relieve  itself  from  responsibility  as  a  common 
carrier  is  by  showing  performance,  or  its  prevention  by  the  act 
of  God  or  the  public  enemy,  and  that  it  is  not  discharged  by  de- 
livering the  same  to  another  on  a  forged  order  of  the  owner. 
The  same  doctrine  is  announced  in  American  etc.  Exp.  Co.  v. 
Wolf,  79  111.  430. 

The  decisions  of  this  court  are  believed  to  be  in  harmony  with 
the  law  as  declared  in  the  text-books  and  as  announced  by  a 
large  majority  of  the  courts  of  last  resort  of  the  country.  The 
law  requires  at  the  hands  of  the  carrier  absolute  certainty  that 
the  person  to  whom  the  delivery  is  made  is  the  real  person  to 
whom  the  goods  have  been  consigned,  and  the  carrier  cannot 
escape  liability  on  the  ground  that  deception,  imposition,  or 
fraud  may  have  been  resorted  to  by  an  impostor  to  obtain  from 
the  agent  of  the  carrier  the  goods  intrusted  to  its  care.  The 
business  interests  of  the  country,  as  well  as  the  rights  of  a  con- 

474 


PACIFIC  EXPEESS  CO.  v.  SHEAEE51.  §  118 

signer  who  pays  a  liberal  price  for  the  transmission  of  his  prop- 
erty, alike  demand  that  the  carrier  should  be  held  to  a  strict 
accountability. 

There  are  a  number  of  cases  in  the  books  where  a  delivery  of 
goods  has  been  made  by  the  carrier  to  the  wrong  person  under 
circumstances  not  unlike  the  facts  under  which  the  money  was 
delivered  here,  where  the  carrier  was  held  liable.  In  American 
Exp.  Co.  V.  Fletcher,  25  Ind.  493,  a  person  pretending  to  be 
J.  0.  Riley  called  on  the  telegraph  operator  and  agent  of  the 
express  company  and  sent  a  telegram  to  plaintiff  requesting  a 
certain  sum  of  money  by  express.  In  a  short  time,  the  same 
agent  received  by  express  a  package  of  money  addressed  to  J.  0. 
Riley.  The  person  who  had  sent  the  telegram  for  the  money 
called  on  the  agent  and  operator  and  demanded  the  package 
of  money,  which  was  delivered  over  to  him.  Subsequently,  it 
turned  out  that  the  person  who  sent  the  telegram  and  to  whom 
the  money  was  delivered  was  not  J.  0.  Riley,  and  the  express 
company  was  held  liable  for  the  money.  In  the  decision  of  the 
case,  the  court,  among  other  things,  said :  ' '  The  express  under- 
taking of  the  appellant  was  to  deliver  the  package  to  J.  0.  Riley 
in  person.  The  utmost  that  the  ansvv^er  alleged  was,  that  the 
delivery  was  to  another  person  who  pretended  to  be  Riley.  He 
identified  himself  merely  as  having  so  pretended  on  the  day  be- 
fore, by  transmitting  a  telegram  in  Riley's  name.  This  was  no 
better  evidence  that  his  name  was  Riley  than  if  he  had  so  stated 
to  the  express  agent  or  any  third  person.  That  the  package 
had  been  sent  in  response  to  a  telegram  purporting  to  be  from 
J.  0.  Riley  simply  proved  that  Riley  had  credit,  or  some  arrange- 
ment with  the  plaintiff  to  furnish  him  money,  and  that  the  pack- 
age was  sent  to  him — not  that  he  was  the  person  who  sent  the 
dispatch  or  that  anyone  pretending  to  be  him  was  to  receive  it. ' ' 

Southern  Express  Co.  v.  Van  Meter,  17  Fla.  783,  35  Am.  Rep. 
107,  is  another  case  in  point.  There  an  instruction  had  been 
given  which  was,  substantially,  that  the  express  company,  with- 
out reference  to  the  party  who  may  have  ordered  the  money 
sent  or  who  may  have  telegraphed  for  it,  was  bound  to  deliver  to 
the  plaintiff  if  it  was  sent  to  him  and  he  was  the  owner.  On 
behalf  of  the  express  company,  it  was  insisted  that  the  instruc- 
tion did  not  announce  a  correct  rule  of  law,  but  the  court  held 
otherwise,  and  said :  * '  This  instruction,  viewed  in  reference  to 
the  testimony,  is  nothing  more  than  that  a  forged  telegram  is  no 
excuse  for  the  delivery  to  a  party  not  the  owner  and  to  whom 
it  was  the  contract  of  the  carrier  to  deliver  it Notwith- 
standing the  forged  telegram,  this  carrier,  in  making  a  personal 
delivery,  was  bound  by  law  to  deliver  to  the  person  to  whom 

475 


§  118  TEKMINATION  OF  CAEEIEK  'S  EELATION. 

the  package  was  addressed,  he  being  its  true  owner.  It  is  the 
settled  doctrine  of  England  and  this  country  that  there  must 
be  an  actual  delivery  to  the  proper  person,  ....  and  in  no 
other  way  can  the  carrier  discharge  his  responsibility,  except 
by  proving  he  has  performed  such  engagement  or  has  been  ex- 
cused from  performance,  or  been  prevented  by  the  act  of  God 
or  a  public  enemy":  See,  also,  American  Exp.  Co.  v.  Stack,  29 
Ind.  27. 

Price  v.  Oswego  etc.  Ry.  Co.,  50  N.  Y.  213,  10  Am.  Rep.  475, 
is  an  interesting  case  on  the  question.  There  the  person  who 
ordered  the  goods  in  the  name  of  a  fictitious  firm,  S.  H.  Wilson 
&  Co.,  was  the  same  person  who  received  and  receipted  therefor 
in  the  name  of  such  fictitious  firm.  It  seems  that  the  referee 
found  ' '  that  the  delivery  by  the  carrier  w^as  to  the  same  person 
who  made  the  order  for  the  goods,"  and  he  also  found,  as  a  con- 
clusion of  law,  that  the  delivery  to  such  person,  without  notice 
of  fraud,  relieved  the  carrier  of  liability.  But  the  court  of  ap- 
peals reversed  the  judgment  and  held  the  carrier  liable,  and, 
among  other  things,  said :  "It  would  hardly  be  claimed,  in  case 
there  had  been  a  firm  doing  business  at  Oswego  under  the  name 
of  S.  H.  Wilson  &  Co.,  a  swindler  would  make  himself  consignee 
of  goods,  or  acquire  any  right  whatever  thereto,  which  were  in 
fact  consigned  to  such  firm,  simply  by  showing  that  he  had 
forged  an  order  in  the  n^me  of  the  firm  directing  such  consign- 
ment. If  he  would  not  thereby  acquire  any  right  to  the  goods, 
delivery  to  him  would  not  protect  the  carrier  any  more  than  if 
made  to  any  other  person." 

Duff  V.  Budd,  3  Brod.  &  B.  177,  7  Eng.  Com.  L.  399,  is  also 
a  case  in  point.  There  the  person  who  received  the  goods  was 
the  same  who  ordered  them  in  a  fictitious  name,  but  it  was  held 
the  carrier  had  no  authority  to  deliver  them  to  such  person,  and 
the  owner  was  entitled  to  recover  of  the  carrier. 

Dunbar  v.  Boston  etc.  R.  R.  Co.,  110  Mass.  26,  14  Am.  Rep. 
576,  and  Edmunds  v.  Merchants'  etc.  Co.,  135  ]\Iass.  283,  are  re- 
lied upon  by  the  appellant  to  sustain  the  delivery  of  the  package. 
In  the  first  case  cited,  one  John  P.  Gorman  called  on  Dunbar, 
in  Boston,  and  represented  that  he  was  John  H.  Young,  of  Prov- 
idence, Rhode  Island.  He  purchased  on  credit  a  quantity  of 
goods,  and  had  them  consigned  to  John  H.  Young,  Providence, 
Rhode  Island.  Upon  the  arrival  of  the  goods  in  Providence, 
Gorman,  who  had  made  the  purchase  in  person,  presented  him- 
self to  the  carrier,  and,  as  the  agent  of  Young,  demanded  the 
goods.  The  goods  having  been  delivered  to  him,  Dunbar  sued 
the  carrier  for  a  misdelivery,  but  the  court  held  that  the  action 
would  not  lie.     The  decision,  as  we  understand  it,  is  predicated 

476 


PACIFIC  EXPRESS  CO.  v.  SHEAEER.  §  118 

on  the  ground  that  the  goods  were  consigned  and  delivered  to 
the  person  who  actually,  in  person,  made  the  purchase  under  an 
assumed  mime.  In  the  other  case  it  appeared  that  "a  swindler, 
claiming  to  be  Edward  Pape,  of  Dayton,  Ohio,  purchased  goods 
from  plaintiff  by  personal  negotiation.  There  was  a  man  whose 
true  name  was  Edward  Pape,  in  Dayton,  Ohio — a  reputable  busi- 
ness man,  whom  the  plaintiff  supposed  the  swindler  to  be.  The 
goods  were  delivered  by  plaintiff'  to  the  defendant,  to  be  carried 
to  Dayton  and  delivered  to  Edward  Pape.  The  defendant  de- 
livered to  the  swindler."  The  court  held  that  the  carrier  was 
not  liable.  In  the  opinion  the  court  said:  "The  sale  was  void- 
al)le  by  the  plaintiff,  but  the  carrier,  by  whom  they  were  for- 
warded, had  no  duty  to  inquire  into  its  validity.  The  person 
who  bought  them,  and  who  called  himself  Edward  Pape,  owned 
the  goods,  and  upon  their  arrival  in  Dayton  had  the  right  to  de- 
mand them  of  the  carrier.  In  delivering  them  to  him  the  car- 
rier was  guilty  of  no  fault  or  negligence.  It  delivered  them  to 
the  person  who  bought  and  owned  them,  who  went  by  the  name 
of  Edward  Pape,  and  thus  answered  the  directions  upon  the 
package,  and  who  was  the  person  to  whom  the  plaintiff  sent 
them."  There  is  a  marked  distinction  between  these  cases  and 
the  one  under  consideration,  and  they  cannot  control  here. 

Another  case  relied  upon  is  Samuel  v.  Cheney,  135  Mass.  278, 
46  Am.  Rep.  467.  That  case,  in  its  facts,  is  more  like  the  one 
under  consideration  than  any  that  has  been  cited  by  appel- 
lant, .and  it  seems  to  sustain  the  position  of  appellant.  But 
while  we  recognize  the  ability  of  the  court  in  which  the  case 
Avns  decided,  we  do  not  regard  the  rule  laid  down  as  the  correct 
one,  and  we  are  not  inclined  to  follow  it. 

Some  other  cases  have  been  cited  in  the  argument  of  counsel, 
but  it  will  not  be  necessary  to  refer  to  them  here.  The  cases 
bearing  on  the  question  are  not  entirely  harmonious,  but  the  rule 
adopted  in  this  state  and  in  the  courts  of  many  other  states,  that 
the  carrier  is  an  insurer  for  the  safe  delivery  of  the  goods  to 
the  person  to  whom  they  are  consigned,  is,  as  we  think,  the  only 
safe  rule  to  be  adopted.  This  rule  gives  protection  to  the  con- 
signor, who  pays  his  money  to  the  carrier  to  transport  and  de- 
liver goods  to  the  consignee,  and  at  the  same  time  imposes  no 
unreasonable  respouF'ibility  on  the  carrier.  When  money  or 
goods  have  been  delivered  to  a  carrier  to  be  carried  and  de- 
livered to  a  certain  named  person,  when  they  reach  their  des- 
tination it  is  the  business  of  the  agent  of  the  carrier  to  deliver 
to  the  real  person  to  whom  they  are  consigned,  and,  as  said  by 
Hutchinson,  no  circumstance  of  fraud,  imposition,  or  mistake 
will  excuse  the  common  carrier  from  responsibility  for  a  de- 

477 


•§§  118,  119      TEEMINATION  OF  CAKKIEE'S  RELATION. 

livery  to  the  wrong  person.  Where  the  consignee  is  unknown  to 
the  agent  of  the  carrier,  it  is  his  duty  to  hold  the  goods  until 
the  consignee  furnishes  ample  proof  that  he  is  the  person  to 
whom  the  goods  were  consigned.  When  Shearer  &  Co.  received  a 
telegram  from  J.  C.  Stubblefield,  and  forwarded  a  package  of 
money  directed  to  J.  C.  Stubblefield,  they  supposed  and  believed 
the  order  came  from  the  man  with  whom  they  had  previously 
had  dealings  and  with  whom  they  were  personally  acquainted, 
and,  when  they  delivered  the  package  to  the  carrier,  it  was  con- 
signed to  him.  The  fact  that  an  impostor  had  sent  a  telegram 
in  the  name  of  J.  C.  Stubblefield,  and  a  reply  to  J.  C.  Stubble- 
field was  returned  which  was  delivered  to  the  impostor,  did  not 
authorize  the  agent  of  the  carrier  to  deliver  the  package  directed 
to  J.  C.  Stubblefield  to  an  impostor  representing  that  he  was 
J.  C.  Stubblefield.  Here  the  package  of  money  was  consigned 
to  J.  C.  Stubblefield,  and  the  carrier  was  directed  to  deliver  the 
money  to  him  and  to  him  onl3^  This  was  not  done.  The  money 
was  never  delivered  to  J.  C.  Stubblefield,  but  the  agent  of  the 
carrier  delivered  it  to  an  impostor,  and  for  a  failure  to  deliver 
the  package  to  J.  C.  Stubblefield  the  carrier  is  liable. 
The  judgment  of  the  appellate  court  will  be  affirmed. 


)(      119.    HAWKINS  V.  HOFFMAN, 

6  Hill  (N.  Y.)  586,  41  Am.  D.  767.    1844. 

Case,  against  defendant  as  a  common  carrier  for  the  loss  of  a 
trunk  containing  samples  of  goods  used  by  one  Mason  in  his  busi- 
ness as  traveling  salesman  for  plaintiff.  The  trunk  was  lost 
while  Mason  was  traveling  with  it  on  defendant's  steamboat. 
Plaintiff  nonsuited  below. 

By  Court,  Bronson,  J.  Trover  will  lie  where  the  goods  have 
been  lost  to  the  owner  by  the  act  of  the  carrier,  though  there 
may  have  been  no  intentional  wrong;  as  where  the  goods  are 
by  mistake,  or  under  a  forged  order,  delivered  to  the  vrrong 
person :  Youl  v.  Harbottle,  Peak.  Cas.  49  ;  Devereux  v.  Barclay, 
2  Barn.  &  Aid.  702 ;  Stephenson  v.  Hart,  4  Bing.  476 ;  Lubbock 
V.  Inglis,  1  Stark.  104.  But  it  will  not  lie  for  the  mere  omission 
of  the  carrier;  as  where  the  property  has  been  stolen  or  lost 
through  his  negligence,  and  so  can  not  be  delivered  to  the  owner. 
The  remedy  in  such  cases  is  assumpsit,  or  a  special  action  on 
the  case:  Anon.,  2  Salk.  655;  Ross  v.  Johnson,  5  Burr.  2825; 
and  see  Dewell  v.  Moxon,  1  Taunt.  391;  2  Saund.  47,  f;  Mc- 
Combie  v.  Davies,  6  East,  538.    Mere  non-feasance  does  not  work 

478 


HAWKINS  V.  HOFFMAN.  §  119 

a  conversion  of  the  property ;  and  although  the  owner  may  have 
another  action,  he  can  not  maintain  trover.  Here,  the  trunk 
was  lost,  and  the  plaintiff  can  only  recover,  if  at  all,  upon  the 
counts  which  charge  the  defendant  as  a  carrier.  A  demand  and 
refusal  would  not  alter  the  case,  for  as  the  trunk  was  either 
stolen  or  lost,  the  defendant  could  not  deliver  it.  Demand  and 
refusal  are  only  evidence  of  a  conversion  where  the  defendant 
was  in  such  a  condition  that  he  might  have  delivered  the  prop- 
erty if  he  would.  If  the  defendant  was  a  common  carrier  of  the 
lost  trunk,  it  would  then  be  important  to  inquire  whether  there 
was  a  complete  delivery  of  the  property  to  ]\Iason  at  Poughkeep- 
sie.  If  there  was  a  full  transfer  from  the  custody  of  the  boat- 
men to  the  charge  of  the  owner,  the  defendant's  contract  was 
performed,  and  he  was  no  longer  answerable  for  the  property  as 
a  common  carrier.  But  although  the  evidence  tended  pretty 
strongly  to  show  a  complete  delivery,  I  do  not  think  it  so  con- 
clusive as  to  warrant  the  judge  in  taking  the  question  from  the 
jury,  if  the  cause  turned  upon  that  point.  He  undoubtedly 
went  upon  the  ground  that  the  defendant  was  not  to  be  re- 
garded as  a  common  carrier  of  the  trunk;  and  that  is  the  prin- 
cipal question  in  the  cause. 

Although  I  do  not  find  it  stated  in  the  case  that  Mason  paid 
anything  to  the  boat-owner,  either  for  freight  or  passage,  yet 
the  whole  argument,  on  both  sides,  went  upon  the  ground  that 
he  had  paid  the  usual  fare  of  a  passenger,  and  nothing  more: 
that  he  neither  paid,  nor  intended  to  pay  anything  for  the 
trunk;  but  designed  to  have  the  same  pass  as  his  baggage.  It 
was  formerly  held,  that  the  owner  of  the  boat  or  vehicle  was 
not  answerable  as  a  carrier  for  the  luggage  of  the  passenger, 
unless  a  distinct  price  was  paid  for  it.  But  it  is  now  held  that 
the  carrying  of  the  baggage  is  included  in  the  principal  con- 
tract in  relation  to  the  passenger ;  and  the  carrier  is  answerable 
for  the  loss  of  the  property,  although  there  was  no  separate 
agreement  concerning  it.  A  contract  to  carry  the  ordinary 
baggage  of  the  passenger  is  implied  from  the  usual  course  of 
the  business ;  and  the  price  paid  for  fare  is  considered  as  includ- 
ing a  compensation  for  carrying  the  freight.  But  this  implied 
undertaking  has  never  been  extended  beyond  ordinary  baggage, 
or  such  things  as  a  traveler  usually  carries  with  him  for  his  per- 
sonal convenience  in  the  journey.  It  neither  includes  money, 
nor  merchandise :  Orange  County  Bank  v.  Brown,  9  Wend.  85, 
24  Am.  Dec.  129 ;  Pardee  v.  Drew,  25  Id.  459. 

It  was  suggested  in  the  first  case,  that  money  to  pay  travel- 
ing expenses  might,  perhaps,  be  included.  But  that  may,  I 
think,  be  doubted.    Men  usually  carry  money  to  pay  traveling 

479 


§§  119,120      TEEMINATION  OF  CAEEIER'S  EELATION. 

expenses  about  their  persons,  and  not  in  their  trunks  or  boxes; 
and  no  contract  can  be  implied  beyond  such  things  as  are  usu- 
ally carried  as  baggage.  It  is  going  far  enough  to  imply  an 
agreement  to  carry  freight  of  any  kind  from  a  contract  to  carry 
the  passenger ;  for  the  agreement  which  is  implied  is  much  more 
onerous  than  the  one  which  is  expressed.  The  carrier  is  only 
answerable  for  an  injury  to  the  passenger,  where  there  has  been 
some  Avant  of  care  or  skill;  but  he  must  answer  for  the  loss  of 
the  goods,  though  it  happened  without  his  fault.  Still,  an 
agreement  to  carry  ordinary  baggage  may  well  be  implied  from 
the  usual  course  of  business;  but  the  implication  can  not  be 
extended  a  single  step  beyond  such  things  as  the  traveler  usu- 
ally has  wdth  him  as  a  part  of  his  luggage.  It  is  undoubtedly 
difficult  to  define  with  accuracy  what  shall  be  deemed  baggage 
wathin  the  rule  of  the  carrier's  liability.  I  do  not  intend  to  say 
that  the  articles  must  be  such  as  every  man  deems  essential  to 
his  comfort;  for  some  men  carry  nothing,  or  very  little  with 
them  when  they  travel,  while  others  consult  their  convenience 
by  carrying  many  things.  Nor  do  I  intend  to  say  that  the  rule 
is  confined  to  wearing  apparel,  brushes,  razors,  writing  appa- 
ratus, and  the  like,  which  most  persons  deem  indispensable.  If 
one  has  books  for  his  instruction  or  amusement  by  the  way,  or 
carries  his  gun  or  fishing  tackle,  they  would  undoubtedly  fall 
within  the  term  baggage,  because  they  are  usually  carried  as 
such.  This  is,  I  think,  a  good  test  for  determining  what  things 
fall  within  the  rule. 

In  this  case  the  plaintiff  sent  out  IMason  as  his  "traveler"  or 
agent  to  seek  purchasers  for  his  goods,  and  the  trunk  in  ques- 
tion contained  samples  of  the  merchandise  which  he  wished  to 
sell.  The  samples  were  not  carried  for  the  personal  use,  con- 
venience, instruction,  or  amusement  of  the  passenger  in  his  jour- 
ney; but  for  the  purpose  of  enabling  him  to  make  bargains  in 
the  way  of  trade.  Although  the  samples  were  not  themselves  to 
be  sold,  they  were  used  for  the  sole  purpose  of  carrying  on 
traffic  as  a  merchant.  They  were  not  baggage  within  the  com- 
mon acceptation  of  the  term;  and  as  they  were  not  shipped  or 
carried  as  freight,  the  judge  was  right  in  holding  that  the  plain- 
tiff could  not  recover. 

New  trial  denied. 

120.     M'ENTEE  V.  NEW  JERSEY  STEAIMBOAT  CO., 

45  N.  Y.  34,  6  Am.  R.  28.    1871. 

Action  for  conversion  of  some  bundles  of  lath  and  blinds 
shipped  by  one  Sayer  to  "McEntee,"  New  York.    Plaintiff  de- 

480 


M'ENTEE  V.  NEW  JERSEY  STEAMBOAT  CO.  §  120 

manded  the  goods  and  was  refused.  Evidence  as  to  the  form 
of  the  refusal  was  conflicting,  but  there  was  evidence  introduced 
to  show  readiness  to  deliver  if  plaintiff  would  properly  identify 
himself  as  the  consignee,  or  as  having  authority  to  receive  the 
goods.  Upon  a  ruling  that  carriers  had  no  right  to  insist  upon 
such  identification  verdict  was  rendered  for  plaintiff. 

Allen,  J.  The  defendants  were  charged  for  the  conversion  of 
the  goods  upon  evidence  of  a  demand  and  a  refusal  to  deliver 
them.  If  the  demand  was  by  the  person  entitled  to  receive  them, 
and  the  refusal  to  deliver  was  absolute  and  unqualified,  the  con- 
version was  sufficiently  proved,  for  such  refusal  is  ordinarily 
conclusive  evidence  of  a  conversion;  but,  if  the  refusal  was 
qualified,  the  question  was,  whether  the  qualification  was  reason- 
able; and  if  reasonable  and  made  in  good  faith,  it  was  no  evi- 
dence of  a  conversion.  Alexander  v.  Southey,  5  B.  and  Aid.  247 ; 
Holbrook  v.  Wight,  24  Wend.  (N.  Y.)  169,  35  Am.  D.  607; 
E£>gers  V.  Weir,  34  N.  Y.  463;  Mount  v.  Derick,  5  Hill,  455. 
If,  at  the  time  of  the  demand,  a  reasonable  excuse  be  made  in 
good  faith  for  the  non-delivery,  the  goods  being  evidently  kept 
with  a  view  to  deliver  them  to  the  true  owner,  there  is  no  con- 
version. 

This  action  is  not  upon  the  contract  of  the  carriers,  but  for  a 
tortious  conversion  of  the  property ;  but  the  rights  and  duties  of 
the  defendants  as  carriers,  are,  nevertheless,  involved. 

The  defendants  were  bailees  of  the  property,  under  an  obli- 
gation to  deliver  it  to  the  rightful  owner.  They  would  have  been 
liable  had  they  delivered  the  goods  to  a  wrong  person.  Common 
carriers  deliver  property  at  their  peril,  and  must  take  care  that 
it  is  delivered  to  the  right  person,  for  if  the  delivery  be  to  the 
wrong  person,  either  by  an  innocent  mistake  or  through  fraud 
of  third  persons,  as  upon  a  forged  order,  they  will  be  responsible, 
and  the  wrongful  delivery  will  be  treated  as  a  conversion.  Hawk- 
ins V.  Hoffman,  6  Hill  (N.  Y.)  586,  41  Am.  D.  767;  Powell  v. 
Myers,  26  Wend.  591 ;  Devereux  v.  Barclay,  2  B.  and  Aid.  702 ; 
Guillaume  v.  Hamburg  and  Am.  Packet  Co.,  42  N.  Y.  212,  1 
Am.  R.  512 ;  Duff  v.  Budd,  3  Brod.  and  Bing.  177.  The  duties 
of  carriers  may  be  varied  by  the  differing  circumstances  of  cases 
as  they  arise;  but  it  is  their  duty  in  all  cases  to  be  diligent  in 
their  efforts  to  secure  a  delivery  of  the  property  to  the  person 
entitled,  and  they  will  be  protected  in  refu'^ing  deli^^ry  until 
reasonable  evidence  is  furnished  them  that  the  party  claiming 
is  the  party  entitled,  so  long  as  they  act  in  good  faith  and  solely 
with  a  view  to  a  proper  delivery.  The  circumstances  of  this 
case,  the  very  defective  address  of  the  parcels,  and  the  omission 
31  481 


§§  120,  121      TEEMINATION  OF  CAREIER'S  RELATION. 

of  the  plaintiff  to  produce  any  evidence  of  title  to  the  property 
or  identifying  him  as  the  consignee,  justified  the  defendants  in 
exercising  caution  in  the  delivery,  and  it  should  have  been  sub- 
mitted to  the  jury  whether  the  refusal  was  qualified,  as  alleged 
by  the  defendants;  and  if  so,  whether  the  qualification  was 
reasonable,  and  was  the  true  reason  for  not  delivering  the  goods. 
The  judge  also  erred  in  his  instructions  to  the  jury  as  to  the 
duty  of  the  defendants,  as  common  .carriers,  in  the  delivery  of 
goods.  They  may  not  properly,  or  without  incurring  liability  to 
the  true  owner,  deliver  goods  to  any  person  who  calls  for  them, 
other  than  the  rightful  owner.  The  judgment  must  be  reversed 
and  a  new  trial  granted,  costs  to  abide  event. 

All  the  judges  concurring,  judgment  reversed  and  new  trial 
ordered. 

121.     PENNSYLVANIA  RAILROAD  CO.  V.  STERN, 

119  Pa.  St.  24;  12  Atl.  756;  4  Am.  St.  R.  626.    1888. 

Action  for  loss  of  consignment  of  bones  improperly  delivered 
by  the  carrier.    The  court  below  ordered  a  verdict  for  plaintiffs. 

Paxson,  J.  The  only  error  assigned  is  to  the  charge  of  the 
court.  It  was  in  substance  that  the  defendant  company  could 
only  deliver  the  merchandise  upon  the  production  of  the  bill  of 
lading,  and  that  as  there  was  nothing  to  excuse  delivery  without 
a  compliance  with  the  terms,  the  jury  should  find  for  the  plain- 
tiffs. 

We  see  no  error  in  this.  The  plaintiffs  shipped  this  carload 
of  dry  bones  from  Bay  City,  Michigan,  to  Landenburg,  Chester 
County,  Pennsylvania,  consigned  to  themselves.  At  the  same 
time  they  drew  on  Whann  for  the  amount,  at  forty-five  dfiys. 
There  was  a  bill  of  lading  attached  to  the  draft,  showing  that 
Stern  and  Spiegel,  the  shippers,  had  consigned  said  car  to 
themselves.  The  letter  of  the  latter  to  Whann,  and  the  invoice, 
both  of  which  were  shown  to  the  agent  of  the  defendant  com- 
pany at  Landenburg,  were  notice  that  there  was  a  draft  and 
bill  of  lading,  and  that  Whann  was  required  to  protect  the  draft. 
The  agent  delivered  the  car  to  Whann  without  the  bill  of  lading, 
and  without  an  acceptance  of  the  draft.  This  he  had  no  right 
to  do.  The  title  to  the  property  remained  in  the  consignors  until 
delivery  in  accordance  with  the  conditions.  Bills  of  lading  are 
symbols  of  property,  and  when  properly  indorsed  operate  as  a 
delivery  of  the  property  itself,  investing  the  indorsers  with  a 
constructive  custody,  which  serves  all  the  purposes  of  an  actual 
possession,  and  so  continues  until  there  is  a  valid  and  complete 

482 


DYEE  V.  GEEAT  NOETHEEN  EAILEOAD  CO.   §§  121,  122 

delivery  of  the  property  under  and  in  pursuance  of  tlie  bill  of 
lading,  and  to  the  persons  entitled  to  receive  the  same :  Hieskell 
V.  Farmers'  and  Merchants'  National  Bank,  89  Pa.  St.  155, 
33  Am.  Rep.  745.  There  could  be  no  delivery  except  in  accord- 
ance with  the  bill  of  lading :  Dows  v.  Milwaukee  Bank,  91  U.  S. 
618;  Stollenwerck  v.  Thatcher,  115  Mass.  224.  The  invoice 
standing  alone  furnishes  no  proof  of  title :  Benjamin  on  Sales, 
sec.  332 ;  Dows  v.  Milwaukee  Bank,  supra. 

It  was  urged,  however,  that  there  was  a  course  of  dealing 
between  the  parties  that  would  take  the  case  out  of  the  rule 
above  stated.  The  attention  of  the  court  below  does  not  appear 
to  have  been  callefl  to  this  matter  upon  the  trial.  No  reference 
to  it  is  to  be  found  in  the  charge,  nor  was  any  point  submitted 
which  would  call  it  forth.  There  was  evidence  that  •  the  de- 
fendant company  had  on  more  than  one  occasion  delivered  goods 
from  the  same  shippers  to  Whann  prior  to  the  acceptance  of 
the  drafts.  No  harm  came  of  this,  because  the  drafts  were 
afterwards  accepted  and  paid.  But  this  course  of  dealing  be- 
tween the  company  and  Whann  was  not  brought  home  to  the 
knowledge  of  the  plaintiffs  in  a  way  that  would  justify  the 
jury  in  finding  that  they  had  acquiesced  in  such  an  arrange- 
ment, and  that  they  had  consented  to  the  delivery  of  this  par- 
ticular car-load  without  the  production  of  the  bill  of  lading  and 
acceptance  of  the  draft.  The  company  delivered  in  their  own 
Wrong  and  assumed  the  risk. 

Nor  can  we  say  as  matter  of  law  that  plaintiffs  suffered  no 
loss  by  reason  of  the  improper  delivery.  If  the  draft  had  been 
accepted,  it  might  have  been  paid,  notwithstanding  the  failure 
of  Whann,  or  the  plaintiffs  might  have  sold  it  without  recourse. 

Judgment  affirmed. 


122.     DYER  V.  GREAT  NORTHERN  RAILWAY  CO., 

,    51  Minn.  345;  53  N.  W.  B.  714;  38  Am.  St.  B.  506.    1892. 

Collins,  J.  Plaintiffs  were  the  consignors,  one  Colwell,  the 
consignee,  and  defendant,  the  common  carrier,  of  a  piano  shipped 
from  Minneapolis  to  Anoka  over  its  line  of  railway.  When  the 
instrument  was  delivered  to  defendant  for  carriage,  its  agent 
gave  the  usual  bill  of  lading  to  plaintiff,  and  this  was  imme- 
diately transmitted  by  them  to  Colwell,  the  consignee.  Soon 
after  its  arrival  at  Anoka,  and  before  Colwell  had  the  oppor- 
tunity to  remove  it  from  the  depot,  the  piano  was  destroyed 
by  fire.     Thereupon  Colwell  made  a  claim  upon  defendant  for 

483 


§  122  TERMINATION  OF  CAREIEE'S  EELATION. 

its  value,  producing  the  bill  of  lading  and  an  invoice,  from  which 
it  appeared  that  he  had  purchased  the  piano  from  plaintiffs, 
and  had  partly  paid  for  the  same.  The  fact  was  that  the  sale 
to  Colwell  was  conditional,  a  written  contract  having  been  made 
that  the  title  to  the  instrument  should  remain  in  plaintiffs  until 
Colwell  paid  for  it  in  full,  and  a  copy  of  this  contract  had  been 
duly  filed  in  the  office  of  the  proper  city  clerk  a  few  days  before 
the  fire,  in  compliance  with  the  provisions  of  the  statute:  Gen. 
Stats.  1878,  c.  39,  sees.  15,  etc.  Defendant  had  no  actual  knowl- 
edge of  this,  and  had  not  been  advised  in  any  manner  as  to 
plaintiff's  claim  upon  the  piano  when,  in  settlement  of  Col- 
well 's  demand,  it  paid  to  him  its  full  value. 

It  is  thoroughly  settled  that  if  no  other  facts  appear  the  con- 
signee, and  not  the  consignor,  of  property  delivered  to  a  com- 
mon carrier  must  be  considered  its  owner:  Benjamin  v.  Levy, 
39  Minn.  11,  38  N.  W.  R.  702.  The  legal  presumption  is  that 
upon  the  delivery  of  goods  to  a  common  carrier  the  title  thereto 
vests  in  the  consignee,  and  this  presumption  the  carrier  has  a 
right  to  rely  upon,  in  the  absence  of  express  notice  from  the  con- 
signor to  the  contrary.  The  carrier,  therefore,  has  the  right  to 
settle  with  the  consignee  in  case  the  property  is  lost,  stolen,  or 
destroyed :  Scammon  v.  Wells,  Fargo  &  Co.,  84  Cal.  311,  24  Pac. 
R.  284;  Pennsylvania  Co.  v.  Holderman,  69  Ind.  18;  2  Am.  & 
Eng.  Ency.  of  law,  810,  811,  and  cases  cited  in  notes.  Again, 
upon  the  stipulated  facts,  Colwell  had  a  special  property  in  the 
instrument,  and  as  a  special  owner  could  recover  its  full  value 
from  the  defendant :  Chamberlain  v.  West,  37  Minn.  54,  33  N. 
W.  R.  114.  See,  also,  Jellett  v.  St.  Paul  etc.  Ry.  Co.,  30  Minn.  265, 
15  N.  W.  R.  237 ;  Brown  v.  Shaw,  51  Minn,  266,  53  N.  W.  R.  633 ; 
Marsden  v.  Cornell,  62  N.  Y.  215 ;  Boston  etc.  R.  R.  Co.  v.  War- 
rior Mower  Co.,  76  Me.  260 ;  White  v.  Webb,  15  Conn.  305.  Coun- 
sel for  respondents  do  not  take  issue  upon  these  propositions,  but 
insist  that,  on  the  filing  of  a  copy  of  the  conditional  contract  of 
sale,  as  before  stated,  defendant  carrier  had  notice  that  their 
clients  retained  title  to  the  property,  and  was  bound  by  such 
notice.  The  statutes  (Gen.  Stats.  1878,  sees.  15,  etc.)  have  no 
application.  They  were  enacted  for  the  benefit  and  protection 
of  the  parties  therein  mentioned,  namely,  creditors  of  the  vendee, 
subsequent  purchasers,  and  mortgagees  in  good  faith,  and  the 
well-established  rules  of  law  fixing  defendant's  liability  as  a 
common  carrier  were  in  no  manner  affected  by  the  provisions 
therein  contained. 

Order  reversed. 


484 


CHAMPION  V.  BOSTWICK.  §  123 

123.     CHAMPION  V.  BOSTWICK, 

18  Wend.  (N.  Y.)  175,  31  Am.  D.  376.    1837. 

Case,  by  Bostwick  and  wife  for  injury  to  the  latter  from  a 
collision  while  she  was  in  a  stage  coach.  The  injury  was  due  to 
the  negligence  of  the  driver.  Verdict  for  defendant.  New  trial 
denied,  and  defendants  sued  out  a  writ  of  error. 

Walworth,  Chancellor.  The  plaintiffs  below  have  been  per- 
mitted to  recover  for  an  injury  sustained  by  the  wife  in  being 
run  over  by  the  driver  of  a  coach  and  horses,  forming  part  of  a 
continuous  line  of  stages  between  Utica  and  Rochester.  The 
injury  took  place  on  a  part  of  the  route  between  Utica  and 
Vernon;  and  was  done  by  a  coach  and  horses  belonging  to 
Dodge,  or  which  had  been  hired  to  him  by  the  year,  and  by  a 
driver  in  his  immediate  employ.  And  the  only  question  for  the 
consideration  of  this  court  is,  whether  the  arrangement  between 
the  owners  of  the  different  parts  of  the  line  between  Utica  and 
Rochester  was  such  as  to  render  Champion  and  Ewers  liable  to 
third  persons  for  such  an  injury,  as  partners  of  Dodge  in  this 
part  of  the  line.  From  the  nature  of  the  arrangement  between 
the  different  stage  owners,  it  is  very  evident  that,  as  between 
themselves,  Dodge  alone  ought  to  sustain  the  loss;  and  that  if 
the  recovery  had  been  against  him  solely,  he  would  not  have 
been  entitled  to  call  upon  the  stage  owners  upon  other  parts  of 
the  line  for  contribution;  and  in  case  this  recovery  against  the 
others  is  sustained,  he  would  be  bound  to  make  good  their  loss 
if  he  were  not  insolvent. 

As  between  these  different  stage  owners,  Stevens,  the  driver, 
was  clearly  the  servant  of  Dodge  only.  Dodge,  therefore,  is 
ultimately  liable  to  them  for  any  injury  which  they  may  sus- 
tain by  the  carelessness  of  his  servant  while  in  his  employ ;  to  the 
same  extent  as  if  such  injury  had  been  occasioned  by  his  own 
carelessness  while  driving  the  coach  and  horses  himself. 

I  think,  however,  that  the  arrangement  made  between  the 
stage  owners,  as  to  the  division  of  the  passage  money  received 
upon  any  part  of  the  line,  was  such  as  to  render  them  all  liable 
to  third  persons,  as  copartners,  for  such  an  injury  as  this;  or 
for  any  injury  to  the  passengers  on  any  part  of  the  route ;  and 
also  rendered  them  liable  for  any  contract  made  by  either  of 
such  owners  which  was  directly  connected  with  the  receipt  of 
the  passage  money,  or  the  increase  of  the  profits  on  any  part 
of  the  entire  route.  By  the  agreement  between  them  the  passage 
money  received  by  either  for  the  transportation  of  passengers 

485 


§  123  TEEMINATION  OF  CAEKIER'S  EELATION. 

over  any  part  of  the  line  constituted  a  common  fund,  out  of 
which  the  tolls  on  the  whole  route  were  first  to  be  paid,  and 
the  residue  was  then  to  be  divided  among  the  owners  of  the 
different  parts  of  the  line  in  proportion  to  the  distances  run  by- 
each,  whether  such  passage  money  was  received  for  the  trans- 
portation of  passengers  over  one  part  of  the  line  or  another. 

This  division  of  the  whole  passage  money,  after  paying  out  of 
the  same  the  expenses  of  the  tolls,  was  a  division  of  the  profits 
of  a  joint  concern,  so  as  to  constitute  a  partnership  between 
themselves  as  to  that  fund;  to  entitle  either  of  them  to  an  ac- 
count ;  and  to  render  them  liable  to  third  persons  as  partners  as 
to  everji;liing  in  which  the  different  owners  of  that  fund  had  a 
joint  or  common  interest.  If  Dodge  had  received  the  passage 
money  for  the  transportation  of  a  passenger  over  his  part  of 
the  route  only,  he  would  have  received  it  for  the  benefit  of  the 
whole  concern,  as  they  all  had  a  common  interest  in  the  profits 
of  that  part  of  the  line.  All,  therefore,  would  have  been  liable 
to  such  passenger,  as  partners  in  this  part  of  the  route,  for  any 
damage  he  might  sustain  in  consequence  of  a  refusal  of  Dodge 
to  transport  him  from  Utica  to  Vernon ;  or  for  any  injury  which 
might  happen  to  him  by  the  carelessness  of  Dodge  or  his  driver, 
or  by  reason  of  any  defect  in  the  coach  or  harness  or  the  team. 
The  case  would  be  entirely  different  if  each  stage  owner  was  to 
receive  and  retain  the  passage  money  earned  on  his  part  of  the 
line,  and  to  sustain  all  the  expenses  thereof;  and  was  only  to 
act  as  agent  of  the  others  in  receiving  the  passage  money  for 
them  for  the  transportation  of  passengers  over  their  parts  of  the 
line.  In  that  case  there  would  be  no  joint  interest,  and  no 
liability  to  third  persons  as  partners. 

The  case  of  Wetmore  and  Cheesebrough  v.  Baker  and  Swan,  9 
Johns.  307,  does  not  decide  that  there  was  no  partnership  in 
that  case.  As  to  a  part  of  the  transaction  there  was  a  partner- 
ship, not  between  the  five  persons,  but  between  the  two  firms 
of  W.  &  C,  and  B.  &  S.,  and  Ostrom.  Ostrom  was  to  run  one 
part  of  the  route,  W.  &  C.  another  part,  and  B.  &  S.  ran  the 
residue  of  the  route.  But  the  expense  of  extra  carriages  was  to 
be  borne  by  all  of  the  parties  jointly.  To  this  extent  there  was 
a  copartnership  between  the  three  owners  of  different  parts  of 
the  route;  and  all  would  clearly  have  been  liable  to  third  per- 
sons for  the  line  of  extra  carriages,  if  any  had  been  necessary. 
But  there  was  a  settlement  and  an  account  stated  between  the 
three  parties  to  this  arrangement,  one  of  the  partners  in  each  of 
the  firms  of  W.  &  C.  and  B.  &  S.  being  present  and  agreeing  to 
such  liquidation  of  the  accounts.  In  conformity  with  which 
settlement  the  money  then  in  Albany  was  to  be  paid  to  B.  &  S. ; 

486 


CHAMPION  V.  BOSTWICK.  §  123 

but  it  was  afterwards  received  by  the  firm  of  W.  &  C,  who 
were  sued  by  B.  &  S.  for  money  had  and  received  to  their  use. 
The  only  question,  therefore,  was,  whether  the  settlement  and 
adjustment  of  the  joint  concern  by  Cheesebrough,  the  partner 
of  Wetmore  in  their  part  of  the  route,  was  binding  upon  such 
partner.  In  other  words,  whether  the  running  of  the  stages  on 
the  whole  line  was  a  joint  concern  between  the  five  individuals 
as  copartners,  or  a  joint  concern  between  Ostrom  and  the  two 
firms  of  W.  &  C.  and  B.  &  S.  And  the  court  very  correctly 
decided  that  there  was  no  partnership  existing  between  the  five 
individuals  which  could  interfere  with  a  recovery  in  that  suit. 

It  is  not  necessary  to  constitute  a  partnership  that  there 
should  be  any  property  constituting  the  capital  stock  which 
shall  be  jointly  owned  by  the  partners.  But  the  capital  may 
consist  in  the  mere  use  of  property  owned  by  the  individual 
partners  separately.  It  is  sufficient  to  cons'titute  a  partnership 
if  the  parties  agreed  to  have  a  joint  interest  in,  and  to  share  the 
profits  and  losses  arising  from  the  use  of  property  or  skill, 
either  separately  or  combined.  Here  the  capital  which  each 
contributed  or  agreed  to  contribute  to  the  joint  concern,  was 
the  horses,  carriages,  harness,  drivers,  etc.,  which  were  neces- 
sary to  run  his  part  of  the  route;  and  to  be  fed,  repaired,  and 
paid  at  his  own  expense.  The  only  debts  or  expenses  for  which 
they  were  to  be  jointly  liable  as  between  themselves  were  the 
tolls  upon  the  whole  line ;  and  the  joint  profits  which  they  were 
to  divide,  if  any  remained  after  paying  the  tolls,  was  the  whole 
passage  money  received  upon  the  entire  line.  Although  it  may 
be  fairly  inferred  that  each  party  supposed  that  the  expenses 
of  running  his  part  of  the  line,  exclusive  of  the  tolls,  would  be 
equal  to  the  distance  run  by  him,  it  by  no  means  follows  that 
any  of  them  supposed  that  the  actual  passage  money  or  profits 
of  the  different  parts  of  the  line  would  be  in  the  same  propor- 
tion; as  it  is  a  well-known  fact  that  the  number  of  passengers 
who  travel  in  public  conveyances  increase  as  you  approach 
large  market  towns,  or  other  places  of  general  resort.  The  only 
object  of  the  agreement  to  divide  the  passage  money  earned  upon 
the  whole  line  among  the  different  proprietors,  must  have  been  to 
give  to  those  who  run  that  part  of  the  line  where  there  was  the 
least  travel,  a  portion  of  the  passage  money  on  other  parts  of 
the  route,  as  a  fair  equivalent  for  their  equal  contribution  of 
labor  and  expense  for  the  joint  benefit  of  all.  And  as  all  the 
owners  of  the  line  were  thus  interested  in  every  part  of  the 
route,  and  were  liable  to  the  passengers  if  they  were  unreason- 
ably detained  on  the  way,  I  am  inclined  to  think  that  if  the 
driver  of  either  had  refused  to  carry  on  the  passengers  over  his 

487 


§  123  TERMINATION  OF  CAEEIER'S  EELATION. 

part  of  the  line,  without  any  sufficient  excuse,  either  of  the 
other  parties  who  happened  to  be  present  might  have  employed 
another  driver,  at  the  common  expense,  to  proceed  with  the 
team  to  the  end  of  that  route,  although  as  between  themselves 
the  owner  of  that  part  of  the  line  would  be  bound  to  pay  such 
extra  expense.  And  the  same  right  would  have  existed  if  the 
driver,  by  reason  of  intoxication  or  otherwise,  was  incapable  of 
discharging  his  duty  with  safety  to  the  passengers.  Although 
the  title  to  the  coach  and  horses  for  the  time  being  might  not 
be  so  far  vested  in  the  partners  as  to  authorize  any  of  them  to 
take  them  out  of  the  possession  of  the  general  owner  himself, 
under  similar  circumstances,  the  passengers  might  unquestion- 
ably be  sent  on  by  either  of  the  others  at  his  expense ;  or  at  the 
expense  of  all  the  owners  of  the  line  who  were  interested  in 
having  it  done,  if  he  was  unable  to  pay  the  expense. 

There  is  a  class  of  cases  in  which  it  has  been  held,  that  a 
person  who  merely  receives  a  compensation  for  his  labor,  in  pro- 
portion to  the  gross  profits  of  the  business  in  which  he  is  em- 
ployed, is  not  a  partner  with  his  employer  even  as  to  third  per- 
sons. The  distinction  appears  to  be  between  the  stipulation  for 
a  compensation  proportioned  to  the  profits,  and  a  stipulation 
for  an  interest  in  such  profits  so  as  to  entitle  him  to  an  account 
as  a  partner :  1  Rose,  91 ;  a  distinction  which  Lord  Eldon  says 
is  so  thin  that  he  can  not  state  it  as  settled  upon  due  con- 
sideration. But  he  says  it  is  clearly  settled  as  to  third  persons, 
though  he  regrets  it,  "that  if  a  man  stipvilates  that  as  the  re- 
ward of  his  labor  he  shall  have,  not  a  specific  interest  in  the  busi- 
ness, but  a  given  sum  of  money,  even  in  proportion  to  the  quan- 
tum of  profits,  that  will  not  make  him  a  partner;  but  if  he  agrees 
for  a  part  of  the  profits  as  such,  giving  him  a  right  to  an  ac- 
count though  having  no  property  in  the  capital,  he  is  as  to  third 
persons  a  partner ;  and  no  arrangement  between  the  parties  them- 
selves can  prevent  it:"  Ex  parte  Hamper,  Stark's  Law  of  Part. 
137.  Gary,  however,  defends  the  principle  upon  which  this  dis- 
tinction is  based.  He  insists  that  as  the  person  who  is  to  receive 
a  compensation  for  his  labor  in  proportion  to  the  profits  of  the 
business,  without  having  a  specific  lien  upon  such  profits  to  the 
exclusion  of  other  credito:^s,  it  is  for  their  interest  that  he 
should  be  compensated  in  that  way,  instead  of  receiving  a  fixed 
compensation  whether  the  business  produced  profits  or  other- 
wise; on  the  other  hand,  that  if  he  stipulates  for  an  interest  in 
the  profits  of  the  business  which  would  entitle  him  to  an  ac- 
count, and  give  him  a  specific  lien  or  a  preference  in  payment 
over  other  creditors,  and  giving  him  the  full  benefit  of  the  in- 
creased profits  of  the  business  without  any  corresponding  risk 

488 


CHAMPION  V.  BOSTWICK.  §  123 

in  case  of  loss,  it  would  operate  unjustly  as  to  other  creditors; 
and  therefore,  that  it  is  perfectly  right  in-  principle,  that  he 
should  be  holden  to  be  liable  to  third  parties  as  a  partner  in 
the  latter  case  but  not  in  the  first:  Gary  on  Part.  11,  note  i.  I 
am  inclined  to  think  this  distinction  is  a  sound  one  as  regards 
the  rights  of  third  persons.  But  as  between  the  parties  them- 
selves it  is  perfectly  competent  for  them  to  agree  that  one 
shall  have  his  full  share  of  the  anticipated  profits  as  a  com- 
pensation for  his  labor  or  skill,  without  running  any  risk  of 
absolute  loss,  except  as  to  third  persons,  if  instead  of  producing 
profits  the  business  should  prove  a  losing  concern.  Many  of 
the  cases  cited  by  the  counsel  for  the  plaintiffs  in  error,  were 
those  in  which  the  question  arose  between  the  immediate  par- 
ties to  the  agreement  which  was  supposed  to  make  them  part- 
ners as  between  themselves;  and  they  may  therefore  be  recon- 
ciled with  other  cases  in  which  they  were  held  to  be  liable  as 
partners  to  third  persons  upon  the  principles  before  stated. 

That  one  partner  is  liable  in  tort  for  the  acts  of  his  copartner 
in  the  prosecution  of  the  copartnership  business,  as  well  as  upon 
contracts  for  the  benefit  of  the  joint  concern,  appears  to  be  well 
settled.  And  the  case  of  Waland  v.  Elkins,  1  Stark.  272, 
Holt  N.  P.  227,  is  in  point,  to  show  that  each  is  liable 
in  tort  for  the  negligence  of  the  servant  employed  and  paid  by 
one  of  them  exclusively,  by  which  a  third  person  is  injured  by 
such  servant  while  engaged  in  the  business  from  which  both 
were  to  derive  a  profit.  If  one  partner  would  be  liable  for  the 
negligence  of  his  copartner  in  such  a  case,  it  seems  to  be  a 
necessary  consequence  that  he  should  be  liable  for  the  same  act 
if  done  by  the  servant  of  such  copartner.  In  relation  to  the 
case  of  Barton  v.  Hanson,  2  Taunt.  49,  in  which  it  was  held 
that  a  party  jointly  interested  in  a  stage  coach  which  was 
horsed  by  the  proprietors  separately  on  different  parts  of  the 
line,  was  not  answerable  for  corn  purchased  by  one  of  the  pro- 
prietors for  the  use  of  his  own  horses  on  his  part  of  the  line, 
Chief  Justice  Gibbs  says,  when  the  case  was  cited  by  the  counsel 
for  the  defendant  in  Waland  v.  Elkins:  ''I  recollect  the  case 
very  well,  but  the  decision  there  turned  upon  the  inferior  con- 
tract, if  I  may  so  term  it,  between  the  parties.  In  that  case  there 
was  a  particular  contract  between  the  parties,  and  it  was  known 
in  what  situation  they  stood  in  respect  to  each  other."  In  other 
words,  it  was  known  in  that  case,  as  in  this,  that  the  different 
proprietors  were  to  run  their  several  parts  of  the  line  with  their 
own  teams  and  at  their  own  expense ;  and  the  plaintiff  had  fur- 
nished one  of  the  proprietors  with  grain  for  his  horses,  know- 
ing that  it  was  for  his  sole  benefit ;  and  as  it  was  furnished  on 

489 


§§  123,  124        TEKMINATION  OF  CAEEIEE'S  EELATION. 

his  credit  solely,  the  plaintiff  had  no  just  grounds  for  charging 
the  partnership  therewith.  It  was  in  fact  trusting  the  individual 
with  a  part  of  the  capital  which  he  knew  that  individual  had 
agreed  to  contribute  to  the  partnership;  and  which  the  other 
partners  are  never  liable  for  under  such  circumstances. 

For  these  reasons,  I  think  there  was  such  a  partnership  be- 
tween the  plaintiffs  in  error  in  relation  to  the  business  in  which 
Stevens  the  driver  was  engaged,  at  the  time  this  injury  was 
done,  as  to  render  them  all  liable  to  the  defendants  in  error  for 
the  consequences  of  his  negligence;  and  that  the  judgment  of 
the  supreme  court  should  be  affirmed. 

On  the  question  being  put,  Shall  this  judgment  be  reversed? 
all  the  members  of  the  court  (twenty-four  being  present),  with 
but  two  dissenting  voices,  voted  in  the  negative.  Whereupon 
the  judgment  of  the  supreme  court  was  affirmed. 

Judgment  affirmed. 


y 


124.     NASHUA  LOCK  CO.  V.  WORCESTER  AND  NASHUA 
RAILROAD  CO., 

48  N.  H.  339,  2  Am.  R.  242.    1869. 

Action  to  recover  the  value  of  ten  cases  of  locks  consigned  to 
New  York,  and  delivered  to  defendants  at  Nashua.  The  goods 
were  safely  carried  by  defendants  and  the  intermediate  carrier 
to  the  terminal  carrier,  the  Norwich  Transportation  Company, 
and  were  shipped  on  one  of  their  steamers  for  New  York.  The 
steamer  came  in  collision  with  a  sailing  vessel,  caught  fire  and 
was  destroyed  with  its  freight. 

Perley,  C.  J.  According  to  the  agreed  ease,  the  three  cor- 
porations, the  Worcester  and  Nashua  railroad,  the  Norwich  and 
Worcester  railroad,  and  the  Norwich  and  New  York  Transporta- 
tion company,  were  engaged  as  common  carriers  in  the  business 
of  transporting  goods  between  Nashua  and  New  York  in  a  con- 
tinuous line  under  an  agreement  by  which  they  divided  the  price 
paid  for  transportation  through  in  proportions  fixed  by  the 
agreement.  The  agreement  is  not  before  us;  but  from  the  gen- 
eral statement  of  it  in  the  case  it  must  be  inferred  that  the 
parties  to  it  were  mutually  bound  to  transport  goods  on  their 
connected  line  according  to  the  direction  given  by  the  owner, 
when  they  were  received  for  transportation  in  the  usual  course 
of  the  business  by  any  one  of  the  parties.  In  this  case  it  would 
have  been  a  violation  of  the  agreement  among  the  parties  to  the 
continuous  line,  if  either  the  Norwich  and  Worcester  railroad 

490 


NASHUA  LOCK  CO.  v.  W.  AND  N.  K.  E,  CO.  §  124 

or  the  transportation  company  had  refused  to  receive  and  trans- 
port the  goods  toward  their  destination  in  the  usual  course  of 
the  business,  as  they  were  marked  and  directed  when  they  w^ere 
received  by  the  defendants. 

The  contract  between  the  plaintiffs  and  defendants  must  be  im- 
plied from  the  facts  stated  in  the  agreed  case.  There  was  no 
special  agreement,  written  or  oral,  that  the  goods  should  be 
carried  to  New  York,  nor  that  the  responsibility  of  the  defend- 
ants should  end  on  delivery  to  the  Norwich  and  Worcester  rail- 
road. The  general  question  is,  whether  the  defendants  under- 
took for  the  transportation  of  the  goods  through  to  New  York,  or 
only  agreed  to  carry  and  deliver,  or  tender,  them  to  the  Nor- 
wich and  Worcester  railroad. 

Had  the  defendants  corporate  authority  to  contract  for  the 
transportation  of  the  goods  beyond  their  own  line  ?  We  have  no 
hesitation  in  holding  that  railroads  may  contract  to  carry  goods 
and  passengers  beyond  their  own  lines.  They  could  not  answer 
Ihe  main  objects  of  their  incorporation  without  the  exercise  of 
this  power.  They  are  laid  out  and  established  with  reference 
to  connections  in  business  with  other  extended  lines  of  trans- 
portation, and  the  power  to  contract  for  transportation  over 
the  connected  lines  is  implied  in  the  general  grant  of  corporate 
authority.  On  this  point  the  authorities  are  nearly  unanimous. 
It  has  been  held  otherwise  in  Connecticut  by  the  opinion  of  three 
judges  against  two.  Hood  v.  N.  Y.  &  N.  H.  Railroad,  22  Conn. 
1;  Ehnore  v.  The  Naugatuck  Railroad,  23  Conn.  457,  63  Am. 
D.  143;  The  Naugatuck  Railroad  v.  The  Button  Company,  24 
Id.  468.  But  in  a  later  case  (Converse  v.  The  Norwich  &  N.  Y. 
Transportation  Company,  33  Id.  166),  the  courts  in  that  state 
have  shown  some  disposition  to  recede  from  the  doctrine  of 
their  earlier  cases.  No  other  authorities  are  cited  by  the  defend- 
ants to  this  point,  and  I  have  found  no  others  that  sustain  their 
view  of  this  question.  The  authorities  the  other  way  are  numer- 
ous and  decisive  (Muschamp  v.  The  Lancaster  &  Preston  Rail- 
way, 8  M.  &  W.  421 ;  Weed  v.  The  S.  &  S.  Railroad,  19  Wend. 
534;  The  F.  &  M.  Bank  v.  The  Ch.  Transportation  Co.,  23  Vt. 
186,  56  Am.  D.  68 ;  McCluer  v.  M.  &  L.  Railroad,  13  Gray  (Mass.) 
124,  74  Am.  D.  624;  Noyes  v.  R.  &  B.  Railroad,  27  Vt.  110;  Wil- 
cox v.  Parmelee,  3  Sandf.  610 ;  Perkins  v.  The  P.  S.  &  P.  Rail- 
road, 47  Me.  573,  74  Am.  D.  507)  ;  and  railroads  may  contract 
for  transportation  beyond  the  limits  of  the  states  in  w^hich  they 
are  established  (McCluer  v.  The  M.  &  L.  Railroad,  13  Gray 
(Mass.)  124,  74  Am.  D.  624;  Burtis  v.  B.  &  S.  L.  Railroad,  24  N. 
T.  269)  ;  and  when  a  railroad  makes  a  contract  for  transporta- 

491 


§  124  TEEMINATION  OF  CAEEIEE'S  EELATION. 

tion  beyond  its  own  line  it  will  be  presumed  that  it  had  authority 
to  do  it.    McCliier  v.  M.  &  L.  Railroad,  qua  supra. 

In  the  agreed  ease  it  is  said  the  goods  were  received  to  be  for- 
warded, etc.,  and  from  this  phrase  an  argument  is  drawn  that  the 
agreement  of  the  defendant  was  to  forward  to  the  next  party  in 
the  line,  and  not  to  carry  through  to  New  York.  But  here  was  no 
express  agreement  in  any  particular  terms,  and  we  are  not  called 
on  to  interpret  the  language  used  in  any  contract.  The  nature  of 
the  undertaking  must  be  inferred  from  the  facts  stated  in  the 
agreed  case,  and  cannot  be  determined  by  the  phrase  used  in 
stating  them.  Even  in  a  written  contract,  where  the  term  for- 
ivardcd  is  used,  if  the  thing  to  be  done  belongs  to  the  business 
of  a  carrier,  he  will  be  charged  as  such.  In  Wilcox  v.  Parmelee, 
3  Sandf.  610,  the  court  say:  "The  criticism  of  the  defendant 
on  the  word  forwarded  used  in  the  contract  is  not  just.  It  ap- 
plies to  the  whole  distance,  as  well  to  those  portions  of  the  route 
where  other  parties  were  owners  of  the  vessels,  as  to  that  portion 
where  he  employed  his  own  means  of  transportation.  He  was 
to  forward  the  goods  from  New  York  to  Fairport,  not  to  Buf- 
falo, which  he  now  says  was  the  terminus  of  his  own  immediate 
route.  The  words  used  by  him  can  only  mean  that  he  was  to 
carry  or  transport  the  goods,  and  whether  in  his  own  vessels 
or  in  those  of  others  was  perfectly  immaterial  to  the  plaintiff." 
In  Schroeder  v.  The  Hudson  River  Railroad,  5  Duer,  55,  the 
defendants  gave  a  receipt  for  goods  "to  be  forivarded  per  Hud- 
son river  freight  train  to  Chicago;"  and  under  this  receipt  it 
was  held  that  the  defendants  were  bound  to  carry  the  goods  to 
Chicago.  So  in  the  recent  case  of  Buckland  v.  The  Adams  Ex- 
press Co.,  97  Mass.  124,  93  Am.  D.  68,  the  defendants  were 
charged  as  common  carriers,  though  they  described  themselves  in 
the  contract  under  which  they  received  the  goods,  as  "express 
forwarders. ' '  In  the  present  case  the  undertaking  of  the  defend- 
ants must  be  implied  from  the  facts  stated  in  the  agreed  case,  and 
the  particular  language  used  in  stating  them  is  of  no  materiality. 

Since  the  introduction  of  steam  as  the  means  of  transportation 
by  land  and  water  the  general  question  raised  in  this  case  has 
been  much  considered  in  different  jurisdictions,  and  there  is  no 
little  confusion  and  contradiction  of  authority  respecting  the 
rule  which  shall  govern  the  rights  and  liabilities  of  the  parties, 
where  goods  are  put  in  the  course  of  transportation  to  distant 
places  through  connected  lines  associated  in  the  business  of 
common  carriers.  Where  such  lines  are  engaged  in  carrying 
passengers  and  their  luggage  the  several  parties  to  the  continuous 
line  incur,  it  would  seem,  the  same  liabilities  for  damage  and 
loss  of  the  luggage  as  in  cases  where  ^hey  sarry  goods  only. 

492 


NASHUA  LOCK  CO.  v.  W.  AND  N.  E.  R.  CO.  §  124 

Darling  v.  The  Boston  &  Worcester  Railroad,  11  Allen,  295; 
Quimby  v.  Vanderbilt,  17  N.  Y.  312,  72  Am.  D.  469 ;  Weed  v. 
The  Railroad,  19  Wend.  534 ;  The  111.  Central  Railroad  v.  Cope- 
land,  24  111.  332,  76  Am.  D.  749 ;  111.  Central  Railroad  v.  John- 
son, 34  Id.  389. 

In  England  and  in  several  of  the  United  States  it  has  been 
held  that  when  a  railroad  or  other  common  carrier  receives  goods 
marked  or  otherwise  directed  for  a  place  beyond  the  carrier's 
own  line,  this  alone  is  prima  facie  evidence  of  a  contract  to  carry 
the  goods  to  their  final  destination,  though  the  freight  money 
for  transportation  through  is  not  paid  to  the  carrier  that  re- 
ceives the  goods,  and  though  he  is  not  shown  to  have  any  con- 
nection in  business  with  other  parties  beyond  his  own  line, 
Mushchamp  v.  The  Lancaster  and  Preston  Railway,  8  M.  &  W. 
421;  Watson  v.  The  Ambergate,  Nottingham  and  Boston  Rail- 
way, 3  L.  &  E.  497;  Collins  v.  The  Bristol  and  Exeter  Rail- 
way, 11  Exch.  790,  7  H.  L.  C.  194;  Coxon  v.  The  Great 
Western  Railway,  5  Hurl.  &  N.  274.  These  and  several  other 
cases  show  that  in  England,  after  the  fullest  discussion  in  all 
the  courts,  the  rule  is  firmly  established  that  a  carrier  who  re- 
ceives goods  marked  for  a  place  beyond  his  own  line  is  prima 
facie  bound  to  carry  them  as  directed  to  their  final  destination, 
and  it  is  there  held  that  the  contract  in  such  case  is  entire,  and 
with  the  first  carrier  alone;  that  until  some  connection  in  the 
business,  which  ha's  the  general  nature,  if  not  the  technical  char- 
acter, of  a  partnership,  appears  between  him  and  the  subsequent 
carriers,  no  action  can  be  maintained  against  them  by  the  owner, 
though  the  goods  were  lost  or  damaged  on  their  part  of  the  route. 

I  have  not  met  with  an  American  case  in  which  the  rule  has 
been  pressed  to  the  extent  of  holding  that  the  owner  cannot  come 
on  any  carrier  by  whose  default  the  loss  or  damage  actually  hap- 
pened. There  are,  however,  numerous  authorities  in  the  United 
States  for  the  general  rule  of  Muschamp  v.  The  Railway,  that 
the  receipt  of  goods  marked  for  a  place  beyond  the  line  of  the 
carrier  who  receives  them  implies  a  contract  to  carry  them  to 
their  final  destination,  though  no  connection  in  business  is  shown 
with  other  carriers  beyond,  and  though  the  price  for  transporta- 
tion through  is  not  paid  in  advance. 

In  Foy  V.  The  Troy  and  Boston  Railroad,  24  Barb.  382,  the 
doctrine  of  the  case  is  stated  in  the  head  note  to  be,  that  "where 
a  railroad  company  receives  for  transportation  property  ad- 
dressed to  a  person  at  a  point  beyond  the  terminus  of  the  road, 
he  will  be  understood,  in  the  absence  of  any  proof  to  the  con- 
trary, to  have  agreed  to  deliver  the  property,  in  the  same  order 
and  condition  in  which  it  was  received,  to  the  consignee."    The 

493 


§  124  TEEMINATION  OF  CAEEIEE'S  EELATION. 

court  say:  "It  was  no  part  of  the  plaintiff's  business  to  inquire 
how  many  different  corporations  made  up  the  entire  line  of  road 
between  Troy  and  Burlington,  or,  having  ascertained  this,  to 
determine  at  his  peril  which  of  said  companies  had  been  guilty 
of  the  negligence  which  resulted  in  the  injury  to  his  wagon." 
In  Schroeder  v.  The  Hudson  River  Railroad,  5  Duer,  55,  the 
agent  of  the  defendants  gave  the  following  receipt  at  New  York : 
"Received  of  Schroeder  six  boxes — to  be  forwarded  per  Hudson 
River  Railroad  freight  train  to  Chicago,  Illinois;"  and  it  was 
held  that  the  defendants  under  this  receipt  were  bound  to  trans- 
port the  goods  to  Chicago.  No  connection  in  business  with  other 
carriers  was  relied  on.  In  Kyle  v.  The  Laurens  Railroad,  10 
Rich.  (Law)  382,  the  rule  of  Muschamp  v.  The  Railway  was 
approved.  O'Niel,  J.,  says:  "The  case  of  Muschamp  v.  The 
Lancaster  and  Preston  Junction  Railway  states,  I  think,  the  true 
rule. ' '  The  rule  of  Muschamp  v.  The  Railway  was  approved  and 
adopted  in  the  Central  Railroad  v.  Copeland,  24  111.  332,  76  Am. 
D.  749,  in  which  it  was  held  that  ' '  a  railroad  corporation  selling 
tickets  through  over  its  own  and  other  roads  is  liable  for  the 
safety  of  passengers  and  their  baggage  to  the  point  of  destina- 
tion." The  case  was  put  on  the  same  ground  as  when  goods  are 
received  marked  for  a  place  beyond  the  line  of  the  carrier  that 
receives  them.  The  court  say:  "We  are  inclined  to  yield  to 
the  force  of  the  reasoning  of  the  English  courts  on  principles  of 
public  convenience,  if  no  other,  and  to  hold  when  a  carrier  re- 
ceives goods  to  carry,  marked  for  a  particular  place,  he  is  bound 
to  carry  and  deliver  at  that  place.  By  accepting  the  goods  so 
marked  he  impliedly  agrees  so  to  do,  and  he  ought  to  be  answer- 
able for  that  loss. ' ' 

( The  court  also  discussed  The  Central  Railroad  v.  Johnson,  34 
111.  389 ;  Detroit  and  Milwaukee  Railroad  v.  F.  and  M.  Bank,  20 
Wis.  122 ;  Angle  v.  Mississippi  and  Missouri  Railroad,  9  la.  487 ; 
St.  John  V.  Van  Santvoord,  25  Wend.  (N.  Y.)  660;  6  Hill  (N. 
Y.)  157.) 

The  American  authorities  above  cited  sustain  the  doctrine  of 
Muschamp  v.  The  Railway,  that,  when  a  carrier  receives  goods 
marked  for  a  place  beyond  his  own  line,  he  is,  prima  facie  and  in 
absence  of  other  evidence,  bound  by  an  implied  contract  to  carry 
the  goods  to  the  place  for  which  they  are  marked,  though  he  has 
no  connection  in  business  beyond  his  own  line,  and  though  he  does 
not  receive  pay  for  transportation  through. 

There  is  another  class  of  American  cases  which  hold  that  the 
mere  receipt  of  goods  marked  for  transportation  beyond  the 
line  of  the  party  that  receives  them  is  not  evidence  of  a  contract 
to  carry  beyond  his  own  line,  if  he  has  no  connection  in  business 

494 


NASHUA  LOCK  CO.  v.  W.  AND  N.  K.  E.  CO.  §  124 

with  carriers  beyond ;  but  that,  if  several  carriers  associate  in  a 
continuous  line,  carry  goods  for  one  price  through,  and  divide 
the  freight  money  among  them  in  an  agreed  ratio,  though  they 
may  not  be  technically  partners,  but  only  quasi  partners,  yet,  as 
to  third  persons  who  intrust  goods  to  them  for  transportation, 
they  are  jointly  liable  for  a  loss  that  happens  in  any  part  of 
the  continuous  line,  though  the  freight  money  is  not  paid  to  the 
first  carrier  on  delivery  of  the  goods  to  him. 

In  Champion  v.  Bostwick,  11  Wend.  (N.  Y.)  571,  18  Id. 
175,  31  Am.  D.  376,  several  proprietors  of  different  sections 
in  a  connected  line  of  stage  coaches  divided  the  receipts  of  the 
whole  route  in  proportion  to  the  miles  run  by  each;  and  it  was 
held  that  they  were  jointly  liable  as  partners  for  an  injury  to  a 
third  person,  not  a  passenger,  caused  by  the  negligence  of  one 
of  them.  It  is  to  be  observed,  that  in  this  case  the  receipts  of 
the  way  as  well  as  the  through  travel  were  brought  into  the  ac- 
count; and  on  this  a  distinction  has  been  taken  between  that 
case  and  one  where  the  receipts  of  the  through  travel  only  are 
divided ;  and  for  that  reason  it  has  been  said  that,  in  a  case  like 
the  present,  there  is  no  partnership  and  no  joint  liability.  But 
as  to  parties  who  deal  with  the  through  line,  it  is  of  no  con- 
sequence how  the  other  business  is  managed,  or  whether  any 
other  business  is  done  by  the  associated  carriers.  At  most,  the 
distinction  is  merely  technical  and  has  no  substance.  Nor  am  I 
acquainted  with  any  legal  principle  to  prevent  one  engaged  in  a 
general  business  from  having  a  partner  in  one  distinct  part  of 
it,  like  the  through  business  in  this  case,  without  bringing  all 
his  business  of  the  same  kind  into  the  partnership  account.  I 
take  it  to  be  no  uncommon  thing  for  a  trader  to  have  a  partner 
in  his  business  done  at  one  place,  who  has  no  concern  in  his  busi- 
ness of  the  same  kind  transacted  at  other  places ;  that  attorneys 
form  partnerships  limited  to  certain  parts  of  their  business,  and 
merchants,  in  the  voyages,  or  in  a  single  voyage,  of  one  ship. 

Hart  V.  The  Rensselaer  &  Saratoga  Railroad,  8  N.  Y.  37, 
59  Am.  D.  447,  is  to  the  point  that  "where  three  separate  rail- 
road companies,  owning  distinct  portions  of  a  continuous 
railroad  route  between  two  termini,  run  their  cars  over  the 
whole  road,  employing  the  same  agents  to  sell  passenger 
tickets,  and  receive  luggage  to  be  carried  over  the  entire 
road,  an  action  may  be  maintained  against  any  one  of 
them  for  loss  of  luggage  received  at  one  terminus  to  be  carried 
over  the  whole  road."  Smith,  J.,  delivering  the  opinion  of  the 
court  in  McDonald  v.  The  Western  Railroad,  34  N.  Y.  501,  502, 
says :  ' '  We  may  judicially  take  notice  of  the  fact  that  the  vast 
business  of  inland  transportation  of  goods  is  carried  on  mainly 

495 


§  124  TERMINATION  OF  CAEEIEE  "S  RELATION. 

upon  routes  formed  by  successive  lines  belonging  to  different 
owners,  each  of  whom  carries  the  goods  over  his  own  line  and 
delivers  them  to  the  next.  Many  of  these  routes  extend  over 
thousands  of  miles.  Their  proprietors  unite  and  receive  goods  for 
transportation  upon  the  promise,  express  or  implied,  that  they 
shall  be  carried  safely  to  the  place  of  delivery.  The  owner  has 
lost  sight  of  his  goods  when  he  delivers  them  to  the  first  carrier, 
and  has  no  means  of  learning  their  whereabouts  till  he  or  the  con- 
signee is  informed  of  their  arrival  at  the  place  of  destination." 

In  ^"ibert  v.  The  Erie  Railroad,  12  N.  Y.  256,  it  was  said, 
that,  "where  a  carrier  is  in  the  habit  of  receiving  and  forward- 
ing goods  directed  to  any  particular  place,  an  agreement  on  his 
part  to  take  them  there  has  been  presumed;  but  where  these 
operations  are  entirely  disconnected,  there  is  no  partnership.  In 
Bradford  v.  The  Railroad  Company,  7  Rich.  (L)  201,  it  was 
held  that  "an  advertisement  of  a  through  line  and  the  course 
of  the  business  is  evidence  to  charge  all  the  roads  engaged  in 
the  continuous  line  of  transportation  as  jointly  liable  for  carriage 
through  the  whole  route."  Redfield,  C.  J.,  in  delivering  the 
opinion  of  the  court  in  The  F.  M.  Bank  v.  The  Transportation 
Company,  23  Vt.  186,  56  Am.  D.  68,  speaking  of  Weed  v.  The 
S.  &  S.  Railroad,  19  "Wend.  534,  says:  "That  case  is  readily 
reconciled  with  the  general  rule  that  such  carrier  is  only  bound 
to  the  end  of  his  o•\^•n  route,  by  the  consideration  that  in  this 
case  there  was  a  kind  of  partnership  coyinedion  between  the  first 
compr/jy  and  the  other  companies  constituting  the  entire  route, 
and  'I\s.o  that  the  first  carrier  took  pay  and  gave  a  ticket  through, 
whi/n  is  most  relied  on  by  the  court;  and  in  such  cases  where 
the  first  company  gives  a  ticket  and  takes  pay  through,  it  may 
be  fairly  considered  equivalent  to  an  undertaking  to  carry 
throughout  the  entire  route."  In  a  note  to  this  case  by  Red- 
field,  C.  J.,  he  says:  "In  that  case  (Weed  v.  The  Railroad) 
the  court  seem  to  put  the  case  more  upon  the  fact  of  taking 
fare  and  giving  a  ticket  through,  which,  in  practice,  is  seldom  or 
never  done,  except  where  there  is  a  quasi  partnership  throughout 
the  route."  This  would  seem  to  be  a  strong  authority  that  where 
there  is  a  connected  line  of  carriers,  and  a  quasi,  though  it  may 
not  be  technical  and  legal,  parttnership,  they  are  liable  jointly 
for  carriage  through  the  whole  connected  route. 

(Omitting  the  discussion  of  Burtis  v.  Buffalo  and  State  Line 
Railroad,  24  X.  Y.  269;  Smith  v.  N.  Y.  C.  Railroad,43  Barb.  225; 
Cincinnati,  H.  &  D.  Railroad  v.  Spratt,  2  Duval  4.) 

In  2  Redfield  on  Railways,  104,  the  learned  author  sums  up  the 
result  of  the  American  cases  on  this  particular  point  as  follows: 
"The  American  cases  upon  the  subject,  with  rare  exceptions, 

496 


NASHUA  LOCK  CO.  v.  W.  AND  X.  E.  K.  CO.  §  124 

recognize  the  right  of  a  railroad  company  to  enter  into  special 
contracts  to  carry  goods  beyond  the liiie  of  their  road;  and  where 
different  roads  are  united  in  one  continuous  route,  such  an  un- 
dertaking, when  goods  are  received  and  booked  for  any  part 
of  the  line,  is  almost  a  matter  of  course."  In  the  present  case 
the  defendants  were  united  in  a  continuous  line  to  New  York; 
the  goods  were  received  marked,  which  must  be  equivalent  to 
hooked,  for  New  York ;  and  the  case  would  seem  to  fall  clearly 
within  the  rule  laid  down  in  Redfield  as  the  result  of  the  Ameri- 
can authorities. 

There  is  still  another  class  of  cases,  in  which  it  is  held  that  the 
fact  of  a  carrier's  receiving  pay  for  transportation  to  a  place 
bej'ond  his  own  line  implies  a  contract  to  carry  to  that  place.  In 
the  case  of  Hyde  v.  The  Trent  &  ]Mersey  Navigation  Company, 
5  T.  R.  389,  decided  in  1793,  the  marginal  note  is  as  follows: 
"Common  carriers  from  A  to  B  charge  and  receive  for  cartage 
to  the  consignee's  house  at  B  from  a  warehouse  there,  where 
they  usually  unloaded,  but  which  did  not  belong  to  them;  they 
must  answer  for  the  goods  if  destroyed  in  the  w^arehouse  by  an 
accidental  fire,  although  they  allow  all  the  profits  of  the  cartage 
to  another  person,  and  that  circumstance  were  kno^vn  to  the  con- 
signee."  The  four  judges  delivered  their  opinions  seriatim, 
and  all  agreed  that  the  charge  for  cartage  to  the  house  of  the 
consignee  ' '  put  the  case  out  of  all  doubt, ' '  and  bound  the  carriers 
who  made  the  charge  to  carry  the  goods  to  their  final  destination. 
In  answer  to  the  argument  that  the  carriers  acted  as  agents  of 
the  owner  in  forwarding  the  goods  beyond  their  own  line,  Mr. 
Justice  BuLLER  said:  "According  to  the  defendants'  own  argu- 
ment great  inconvenience  would  result  to  the  public  from  adopt- 
ing the  other  rule.  According  to  their  argument  there  must  be 
two  contracts,  where  goods  are  sent  by  coach  or  wagon.  But  I 
think  the  same  argument  tends  to  establish  the  necessity  of 
three;  one  with  the  carrier,  another  with  the  innkeeper,  and  a 
third  with  the  porter.  But  in  fact  there  is  but  one  contract; 
there  is  nothing  like  any  contract  or  communication  between  any 
other  person  than  the  owner  of  the  goods  and  the  carrier.  But 
I  rely  on  the  charge  which  the  defendants  compelled  the  plaintiff 
to  pay  before  they  would  engage  to  deliver  the  goods.  The  dif- 
ferent proprietors  may  divide  the  profits  among  themselves  in 
any  way  they  choose,  but  they  cannot  exonerate  themselves  from 
their  liability  to  the  owner  of  the  goods."  This  case,  coming 
before  the  agitation  of  these  questions  on  the  introduction  of 
steam  as  a  motive  power,  and  decided  on  the  general  principle 
applicable  to  the  liability  of  carriers  at  common  law,  is  certainly 
of  very  great  weight.  It  decides  that  when  a  carrier  receives 
32  497 


§  124  TERMINATION  OF  CAEEIER  'S  EELxVTION. 

goods  to  be  transported  beyond  his  own  line,  and  takes  pay  for 
carrying  them  to  their  final  destination,  he  agrees  to  do  what  he 
has  been  paid  for  doing;  and  it  repudiates  the  fanciful  theory 
of  an  agency  for  the  owner  to  forward  the  goods,  and  in  his  be- 
half procure  them  to  be  carried  by  others. 

In  Weed  v.  The  Saratoga  &  Schenectady  Railroad,  19  "Wend. 
534,  the  plaintiff's  agent  took  passage  at  Saratoga  in  the  Sara- 
toga and  Schenectady  railroad  for  Albany,  and  paid  his  fare 
to  Albany.  The  route  to  Albany  consisted  of  the  defendants' 
and  the  Mohawk  and  Hudson  River  railroad.  When  the  agent 
arrived  at  Albany  his  trunk,  containing  money  of  the  plaintiff, 
was  missing,  and  this  action  was  brought  to  recover  for  the  loss. 
One  ground  taken  for  the  defendants  was,  that  there  was  no 
evidence  the  trunk  was  lost  on  their  road.  There  was  no  evidence 
of  a  contract  to  carry  to  Albany  except  such  as  was  implied  from 
the  fact  that  the  two  roads  made  a  continuous  line  to  Albany, 
and  the  defendants  took  the  trunk  for  carriage  to  Albany  and 
received  the  pay  for  carrying  through.  It  was  held  that  the 
payment  and  receipt  of  fare  through  bound  the  defendants  as 
carriers  over  the  other  road  through  the  whole  continuous  route. 

Wilcox  V.  Parmelee,  3  Sandf.  610,  is  an  authority  to  the  same 
point,  that  receiving  pay  for  transportation  to  a  place  beyond 
the  line  of  the  carrier  w^ho  receives  it  implies  a  contract  to  carry 
to  that  place.  The  court  say:  "Besides,  there  is  a  fixed  sum 
which  covers  the  whole  charge;  and  it  would  be  absurd  to  sup- 
pose that  the  defendant  was  to  receive  the  whole  sum  for  merely 
forwarding,  that  is,  placing  the  goods  on  the  vessels  of  some  other 
party  to  be  carried  to  their  place  of  destination." 

Van  Santvoord  v.  St.  John,  6  Hill,  157,  cited  for  the  defend- 
ants, recognizes  the  doctrine  of  Weed  v.  The  Railroad.  In  his 
opinion  for  reversing  the  judgment  of  the  supreme  court  the 
chancellor  says:  "In  the  case  of  Weed  v.  The  Railroad,  the 
two  lines  were  connected  together  by  an  arrangement  between 
themselves,  and  the  agent  of  the  defendant  took  the  pay  in  ad- 
vance for  the  conveyance  of  the  plaintiff  and  his  baggage  the 
whole  distance.  Or,  if  no  actual  connection  between  the  two  lines 
was  proved,  it  at  least  appeared  that  the  defendant  permitted 
its  agent  to  hold  it  out  as  a  carrier  of  passengers  and  their  bag- 
gage for  the  whole  distance,  by  taking  pay  therefor."  It  thus 
appears  that  in  Van  Santvoord  v.  St.  John,  as  in  Hyde  v.  The 
Navigation  Company,  taking  pay  for  carriage  to  a  place  beyond 
the  line  of  the  party  that  takes  it  is  regarded  as  decisive  of  an 
undertaking  to  carry  to  that  place.  Quimby  v.  Vanderbilt,  17 
N.  Y.  315,  72  Am.  D.  469,  is  to  the  same  point,  that  receiving 
pay  for  carriage  through  a  continuous  line  imports  a  contract 

498 


NASHUA  LOCK  CO.  v.  W.  AND  N.  E.  E.  CO.  §  124 

to  carry  through;  and  in  Burtis  v.  The  Buffalo  &  State  Line 
Railroad,  24  N.  Y.  269,  278,  Sutherland,  J.,  says:  "It  would 
appear  to  be  settled  by  both  the  American  and  English  cases 
that  when  from  usage  in  the  particular  business,  or  by  receiving 
pay  to  the  place  to  which  the  goods  are  addressed,  beyond  the 
railway  company's  road,  or  from  any  other  circumstance,  it  is 
to  be  presumed  that  the  undertaking  of  the  railway  was  to  de- 
liver at  such  place,  they  are  responsible  for  the  delivery  of  the 
goods  at  such  place,  and  are  liable  if  the  goods  are  lost  after 
leaving  their  road." 

(Omitting  discussion  of  Choteaux  v.  Leach,  18  Pa.  St.  224; 
Baltimore  &  Philadelphia  Steamboat  Co.  v.  Brown,  54  Pa,  St. 
77;  Candee  v.  Pennsylvania  Railroad,  21  Wis.  582,  94  Am.  D. 
566 ;  Gary  v.  Cleveland  and  Toledo  Railroad,  29  Barb.  36 ;  Illinois 
Central  Railroad  Company  v.  Copeland,  24  111.  332,  76  Am.  D. 
749;  Wheeler  v.  Railroad,  31  Cal.  52,  89  Am.  D.  147.) 

In  Carter  v.  Peck,  4  Sneed  (Tenn.)  203,  67  Am.  D.  604,  the 
defendants  received  fare  and  gave  a  ticket  to  a  point  beyond 
their  own  line ;  it  was  held  that  they  were  liable  for  a  detention 
beyond  their  own  line.  Harris,  J.,  delivering  the  opinion  of  the 
court,  says :  "When  the  defendants  received  the  plaintiff's  money 
and  gave  him  a  through  ticket,  they  thereby  became  bound  for 
his  transportation  over  the  entire  line.  The  arrangement  be- 
tween the  defendants  and  the  proprietors  of  other  portions  of 
the  line  was  a  matter  with  which  the  plaintiff  had  nothing  to  do. 
He  was  no  party  to  that  arrangement,  nor  was  he  bound  to  look 
to  any  person  for  the  performance  of  the  defendant's  under- 
taking to  any  person  but  themselves. ' ' 

Redfield  (in  Red.  of  Railways,  109)  sums  up  the  result  of 
the  authorities  on  this  point  as  follows :  "It  has  generally  been 
considered,  both  in  this  country  and  in  the  English  courts,  that 
receiving  goods  destined  beyond  the  terminus  of  the  particular 
company,  and  giving  a  check  or  ticket  through,  does  import  an 
undertaking  to  carry  through,  and  that  this  contract  is  binding 
on  the  company. ' ' 

Then,  again,  there  are  American  cases  which  maintain  the 
doctrine  that,  though  carriers  are  associated  in  a  continuous 
line,  and  one  of  them,  on  receiving  goods  marked  for  transpor- 
tation through,  takes  pay  for  transportation  through,  which  by 
agreement  of  the  parties  to  the  continuous  line  is  divided  among 
them  in  a  fixed  proportion,  yet,  in  the  absence  of  a  positive  agree- 
ment, each  carrier  is  liable  for  loss  on  his  own  line,  and  not  for 
a  loss  on  any  other  part  of  the  connected  line. 

This  appears  to  be  the  settled  rule  in  Connecticut. 

(The  court  cited  Hood  v.  New  York  &  New  Haven  Railroad,  22 

499 


§  124  TEKMINATiON  OF  CAREIER'S  RELATION. 

Conn.  1 ;  Elmore  v.  Naugatuck  Railroad,  23  Conn.  457,  63  Am.  D. 
143 ;  Naugatuck  Railroad  v.  Button  Co.,  24  Conn.  468 ;  Converse 
V.  Norwich  and  Worcester  Transportation  Co.,  33  Conn.  166.  A 
single  case  in  Maine — Perkins  v.  P.  S.  &  P.  Railroad,  47  Me.  573, 
was  considered  indecisive  of  this  question ;  and  in  Massachusetts, 
Nutting  V.  Connecticut  River  Railroad,  1  Gray  (IMass.)  502 ;  Dar- 
ling V.  Boston  and  Worcester  Railroad,  11  Allen  (Mass.)  295,  and 
Goss  V.  N.  Y.,  Providence  and  Boston  Railroad,  99  Mass.  220, 
were  cited  as  settling  the  rule  in  Massachusetts  to  be  that  a  cor- 
poration receiving  goods  directed  to  a  point  beyond  its  own  line 
does  not  become  responsible  beyond  its  own  line,  unless  it  make- 
a  positive  agreement  extending  its  liability.) 

It  has  been  said  that  the  English  rule  on  this  subject  has  not 
been  generally  adopted  in  this  country.  A  review,  however,  of 
the  American  cases  shows  but  too  plainly  that  if  our  courts  have 
differed  from  the  English,  they  are  far  from  agreeing  among 
themselves  in  any  principle  or  doctrine  that  can  be  called  the 
American  rule.  There  is  not  only  much  confusion,  but  no  little 
conflict,  in  the  American  authorities.  A  large  proportion  of 
them  are  not  directly  in  point  for  the  present  case,  which  must 
be  decided  on  the  facts  found  by  agreement  of  the  parties. 

The  following  are  the  facts  and  circumstances  from  which 
the  contract  between  these  parties  must  be  inferred : 

The  three  corporations  were  engaged  as  common  carriers  in  the 
transportation  of  goods  in  a  connected  line  between  Nashua  and 
New  York,  under  an  agreement  among  the  parties  to  the  con- 
nected line; 

In  the  present  instance,  and  generally  under  the  agreement, 
one  price  was  paid  for  transportation  through; 

The  freight  money  was  divided  among  the  parties  to  the  con- 
nected line  in  proportions  fixed  by  their  agreement ; 

The  goods  were  received  by  the  defendants  for  transportation 
on  the  connected  line  marked  for  New  York ; 

The  legal  inference  from  the  general  statement  of  the  agree- 
ment is,  that  the  parties  to  the  continuous  line  were  bound  by 
their  mutual  contract  to  take  from  each  other  and  carry  through 
goods,  so  marked,  that  might  be  received  by  any  one  of  them ; 

The  price  for  transportation  to  New  York  was  paid  to  the 
defendants,  when  they  received  the  goods. 

The  American  authorities  are  comparatively  few,  which  hold 
that  when  all  these  circumstances  concur,  the  carrier  who  receives 
the  goods  is  not  bound,  by  an  implied  agreement,  to  carry  them, 
or  see  that  they  are  carried,  over  the  connected  line  to  their  final 
destination.    I  do  not  find  that  the  decisions  in  any  of  the  states 

500 


NASHUA  LOCK  CO.  v.  W.  AND  N.  R.  E.  CO.  §  124 

sustain  this  defense,  except  in  Connecticut,  ]\Iaine  and  Massachu- 
setts. 

With  regard  to  the  cases  in  Connecticut,  it  cannot  imply  any 
want  of  the  respect  due  to  the  courts  of  that  state,  if  I  say  that 
for  two  reasons  their  cases  on  this  point  are  not  entitled  to  all 
the  deference  that  is  paid  to  their  decisions  on  other  subjects. 
In  the  first  place,  it  is  held  there  that  railroad  corporations  have 
no  corporate  authority  to  contract  for  the  transportation  of 
goods  or  passengers  beyond  their  own  lines;  a  doctrine  rejected 
everywhere  else. 

(The  court  also  pointed  out  that  the  Connecticut  decisions 
were  rendered  by  three  judges  against  two.) 

But  in  Massachusetts  the  court,  in  a  series  of  decisions,  have 
established  the  rule  that  a  carrier,  though  associated  with  others 
in  a  connected  line  of  transportation,  is  not  liable  for  a  loss 
happening  beyond  his  own  line  wi^ut  a  positive  agreement 
to  that  effect ;  and  this  rule  is  applied  to  the  baggage  of  passen- 
gers, and  the  undertaking  of  express  companies  that  receive  goods 
for  transportation  beyond  their  own  lines.  The  fact  that,  not- 
withstanding the  earlier  decisions,  suits  have  continued  to  be 
brought  in  that  commonwealth  against  parties  that  have  re- 
ceived goods  to  be  transported  on  continuous  lines  for  losses 
happening  beyond  their  own  lines,  might  seem  to  suggest  a  sus- 
picion that  the  profession  and  the  public  had  not  readily  acqui- 
esced in  the  rule  as  there  laid  down ;  but  the  court  have  adhered 
firmly  to  the  rule,  and  in  some  of  the  later  cases  have  apparently 
declined  to  enter  on  the  discussion  of  the  question,  treating  it  as 
finally  settled ;  and  we  must,  therefore,  consider  the  high  author- 
ity of  that  court  as  against  the  right  of  the  plaintiffs  to  recover 
in  this  action.  So  far,  however,  as  that  court  may  be  under- 
stood to  have  established  the  rule,  that  to  bind  a  railroad  for 
transportation  beyond  its  own  line  there  must  be  an  express 
and  positive  agreement  between  the  railroad  and  the  owner  of 
the  goods,  and  that  such  an  undertaking  is  not  to  be  implied 
from  facts  such  as  are  found  in  this  case,  the  current  of  Ameri- 
can authority,  to  say  nothing  of  the  English,  appears  to  be  strong 
the  other  way.  Excepting  the  cases  in  Connecticut  and  Maine, 
which,  when  examined,  do  not,  I  think,  give  the  Massachusetts 
doctrine  any  very  strong  support,  the  authorities  in  other  states, 
though  they  differ  much  in  other  particulars,  generally  agree  in 
this,  that  where,  as  in  the  present  case,  there  is  a  continuous  line 
of  different  carriers  united  by  an  agreement  under  which  they 
carry  goods  through  the  connected  line  for  one  price,  which  they 
divide  among  themselves  in  proportions  fixed  in  their  agreement, 
if  one  of  the  parties  receiving  goods  to  be  transported  on  the 

501 


§  124  TEEMINATION  OF  CAKKIER  'S  EELATION. 

continuous  line,  marked  for  any  place  in  it,  and  on  receiving  the 
goods  takes  pay  for  transporting  them  to  that  place,  the  party 
so  receiving  the  goods  and  the  pay  for  transportation,  is  prima 
facie  bound  by  an  implied  agreement  to  carry  the  goods,  or  see 
that  they  are  carried,  to  the  place  for  which  they  are  marked, 
and  is  liable  for  a  loss  happening  on  any  part  of  the  connected 
line. 

If  the  case  were  to  be  considered  on  authority  only,  we  should 
feel  bound  to  decide  for  the  plaintiffs,  inasmuch  as  we  find  the 
weight  of  authority  to  preponderate  heavily  in  their  favor;  and 
taking  general  principles  and  reasons  of  convenience  and  public 
policy  for  our  guide,  we  are  led  to  the  same  conclusion. 

In  the  view  which  the  plaintiffs  ask  us  to  take  of  this  case, 
when  the  goods  were  received  by  the  defendants,  marked  for 
transportation  to  New  York,  and  the  price  paid  to  the  defendants 
for  transportation  through  on  the  continuous  line,  the  plaintiffs 
made  one  contract  with  the  defendants,  by  which  the  defend- 
ants agreed,  either  as  joint  carriers  with  the  other  associated 
parties,  or  as  undertaking  for  them  to  carry  the  goods  through 
for  the  price  paid,  as  goods  were  carried  in  the  usual  course  of 
the  business  on  that  line.  In  that  view  the  plaintiffs  would  have 
nothing  further  to  do  in  the  matter.  Every  thing  else  was  pro- 
vided for  by  the  agreement  among  the  associated  carriers;  for 
by  their  agreement  the  defendants  were  bound  to  transport,  and 
the  successive  carriers  would  be  bound  to  take  and  carry,  the 
goods  from  each  other  to  their  final  destination.  The  price 
through  was  paid,  and  belonged  to  the  different  carriers  in  pro- 
portions fixed  by  their  agreement,  and  this  theory  would  agree 
exactly  with  the  facts;  for  the  plaintiffs  in  fact  made  but  one 
agreement  with  one  party  to  have  the  goods  carried  for  one  price 
to  New  York.  No  further  stipulation  or  direction  on  the  part 
of  the  plaintiffs  was  necessary,  and  none  was  ever  in  fact  given 
by  owners  of  goods  who  put  them  in  the  course  of  transportation, 
as  these  were  put,  in  the  continuous  line. 

According  to  the  defendants'  theory  of  the  case,  when  the 
plaintiffs  delivered  the  goods  marked  for  New  York,  and  the  de- 
fendants received  them  and  took  pay  for  transportation  through, 
no  contract  was  made  with  any  party  to  carry  the  goods  through ; 
but  the  contract  then  made  by  the  defendants  was  to  carry  the 
goods  to  the  next  carriers  on  the  connected  line  with  the  surplus 
money,  and,  as  agents  of  the  plaintiff's,  make  a  contract  if  they 
could  with  the  next  carriers  to  take  the  goods  and  the  money, 
and  carry  them  on  in  the  same  way  through  successive  agencies 
for  the  plaintiff  to  their  final  destination.  If  these  agents  should 
consent  to  act  for  the  plaintiffs,  and  be  able  to  negotiate  bargains 

502 


NASHUA  LOCK  CO.  v.  W.  AND  N.  E.  E.  CO.  §  124 

with  the  other  carriers  for  transportation  through,  the  goods 
would  go  to  New  York  as  was  intended ;  but  they  would  go  under 
three  separate  contracts,  made  at  different  times  through  this 
imaginary  agency,  with  three  different  and  independent  parties. 

The  first  objection  to  the  defendants'  theory  of  this  transaction 
is,  that  it  is  contrary  to  the  fact.  The  owner  of  goods  in  a  case 
like  this  does  not  in  fact  appoint  or  employ  the  successive  carriers 
in  the  continuous  line  as  his  agents  to  hold  his  money  for  him, 
and  as  his  agents  carry  it  forward  and  contract  in  his  behalf 
with  the  other  roads  for  further  transportation.  He  makes 
but  one  contract  for  one  price ;  he  pays  the  price,  and  the  money 
he  has  paid  does  not  belong  to  him,  but  to  the  associated  carriers, 
in  proportions  fixed  by  their  agreement.  He  does  not  inquire, 
nor  is  he  interested  to  know,  how  they  divide  the  money.  The 
contract  is  entire  and  complete  when  he  pays  the  price  for  trans- 
portation through,  and  every  thing  to  be  done  afterward  is  regu- 
lated by  the  standing  agreement  among  the  associated  carriers. 
He  has  no  control  over  them  as  his  agents ;  he  does  not  and  can- 
not intermeddle  with  the  manner  in  which  they  do  the  business 
or  dispose  of  the  money  that  he  has  paid  for  the  carriage  of  his 
goods. 

Let  us  see  what  are  some  of  the  consequences  that  would  fol- 
low, if  both  parties  in  a  case  like  this  should  act  on  the  defend- 
ants' view  of  their  legal  rights.  Suppose  in  this  case  the  goods 
had  been  carried  through  to  New  York,  and  the  defendants  had 
not  paid  to  the  next  carriers  the  proportion  of  the  freight  money 
which  belonged  to  the  other  carriers;  and  then  suppose  that 
the  Norwich  and  Worcester  railroad  should  sue  the  plaintiffs  for 
carrying  the  goods  over  their  road.  It  would  avail  the  plaintiffs 
nothing  to  say  that  they  had  paid  the  freight  through  when  the 
goods  were  received  at  this  end  of  the  route.  The  ready  answer 
would  be :  "  To  be  sure,  you  put  money  into  the  hands  of  your 
agents,  the  Worcester  and  Nashua  railroad,  to  pay  us,  but  they 
neglected  their  duty;  your  money  is  still  in  their  hands,  and 
we  are  not  paid."  It  is,  however,  quite  clear,  that  the  money 
received  by  the  defendants  for  transportation  through  on  the 
connected  line  would  be  held  by  them  for  all  the  parties  to  the 
line;  they  would  be  bound  to  account  for  it  under  their  agree- 
ment as  one  partner  accounts  with  his  fellows  for  money  received 
on  partnership  account.  Then,  if  the  plaintiffs  should  undertake 
to  pay  the  different  carriers,  how  are  they  to  know  the  share  of 
each  ?  The  proportions  of  the  freight  money  belonging  to  them 
respectively  are  regulated  by  a  private  agreement  of  which  the 
plaintiffs  know  nothing,  and  of  which,  in  the  way  the  business 
is  actually  conducted,  they  have  no  need  to  be  informed.    If  the 

503 


§  124  TEEMINATION  OF  CAEEIER  'S  RELATION. 

plaintiffs  had  proposed  when  they  delivered  the  goods  to  pay 
the  Worcester  and  Nashua  road  their  proportion  of  the  freight 
money,  and  afterward  to  pay  the  other  carriers  their  respective 
shares,  they  probably  would  have  found  nobody  to  tell  them  what 
the  different  shares  were,  or  to  receive  the  goods  to  be  carried  on 
such  terms.  In  truth,  the  connected  line  transacts  business  as 
one  joint  concern,  and  the  business  cannot  be  transacted  other- 
wise with  convenience  either  to  the  carriers  or  the  owners  of  the 
goods. 

Then  if  we  look  to  the  remedy  of  the  associated  carriers  for  the 
recovery  of  the  freight  money,  each,  on  the  theory  of  the  defend- 
ants, must  bring  a  separate  suit  on  the  separate  contract  for  his 
proportion  of  the  money.  We  have  had  occasion  to  learn,  from 
the  facts  stated  in  another  case  now  pending  before  us,  that  there 
is  a  connected  line,  consisting  of  six  or  seven  different  railways, 
extending  from  Ogdensburgh  in  New  York,  through  Vermont 
and  New  Hampshire,  to  Boston  in  Massachusetts,  in  which  one 
price  is  paid  for  transportation  through,  and  the  money  divided 
by  a  standing  agreement,  as  in  this  case.  If  goods  are  carried 
through  on  this  route,  and  there  are  six  or  seven  different  con- 
tracts, one  with  each  road,  then  each  road  must  bring  a  separate 
action  for  its  share  of  the  freight  money.  If  it  should  be  said 
that  the  remedy  of  the  roads  is  to  retain  the  goods  at  the  end  of 
the  route  till  the  whole  price  for  transportation  through  is  paid, 
this,  in  the  first  place,  would  show  that  these  roads  are  so  com- 
bined that,  for  their  own  purposes,  they  are  a  unit,  while  they 
insist  that  they  are  wholly  separate  and  independent  when  the 
owner  seeks  redress  for  the  loss  of  his  goods.  And  then  again, 
if  the  roads  act  separately,  and  are  not  jointly  interested  in  the 
business  of  the  connected  line,  when  one  of  the  roads  parts  with 
the  possession  of  goods  by  delivery  to  another,  it  loses  its  lien 
for  the  freight  money,  and  cannot  transfer  it  to  another  inde- 
pendent carrier.  Angell  on  Carriers,  357,  359,  609.  This  is 
not  at  all  like  the  maritime  lien,  when  a  voyage  is  broken  up 
and  the  cargo  is  put  on  board  another  vessel  to  be  carried  to  the 
port  of  destination.  There  the  lien  on  the  cargo  for  the  whole 
freight  is  transferred  to  the  second  vessel,  which  completes  the 
transportation  under  one  contract. 

The  use  of  steam  in  carrying  goods  and  passengers  has  pro- 
duced a  great  revolution  in  the  whole  business.  The  amount 
and  importance  of  it  have  of  late  vastly  increased,  and  are  every 
day  increasing.  The  large  business  between  different  parts  of 
the  country  is  done,  as  in  this  case,  by  parties  who  are  associated 
in  long  continuous  lines,  receiving  one  fare  through,  and  divid- 
ing it  among  themselves  by  mutual  agreement.     They  act  to- 

504 


NASHUA  LOCK  CO.  v.  W.  AND  N.  E.  E.  CO.  §  124 

gether  for  all  practical  purposes,  so  far  as  tlieir  own  interests 
are  concerned,  as  one  united  and  joint  association.  In  managing 
and  controlling  the  business  on  their  lines,  they  have  all  the 
advantages  that  could  be  derived  from  a  legal  partnership.  They 
make  such  an  arrangement  among  themselves  as  they  see  fit 
for  sharing  the  losses,  as  they  do  the  profits,  that  happen  in  any 
part  of  their  route.  If,  by  their  agreement,  each  party  to  the 
connected  line  is  to  make  good  the  losses  that  happen  in  his  part 
of  the  route,  the  associated  carriers,  and  not  the  owner  of  the 
goods,  have  the  means  of  ascertaining  where  the  losses  have 
happened.  And  if  this  cannot  be  known,  there  is  nothing  un- 
reasonable or  inconvenient  in  their  sharing  the  loss,  as  in  case 
of  a  legal  partnership,  in  proportion  to  their  respective  interests 
in  the  whole  route. 

They  undertake  the  business  of  common  carriers,  and  must  be 
understood  to  assume  the  legal  liabilities  of  that  business.  They 
transact  the  business  under  a  change  of  circumstances ;  but  the 
principles  and  the  general  policy  of  the  common  law,  which,  as 
an  elementary  maxim,  holds  the  common  carrier  liable  for  all 
accidental  losses,  must  be  applied  to  these  new  methods  of  trans- 
acting the  same  business;  and  there  is  certainly  nothing  in  the 
present  condition  of  the  business  which  calls  for  any  relaxation  of 
the  old  rule.  The  great  value  of  commodities  transported  over 
these  connected  lines — the  increased  risk  of  loss  and  damage  from 
the  immense  distances  over  which  they  carry  goods — the  fact  that 
where  goods  are  once  intrusted  to  carriers  on  these  long 
routes,  they  are  placed  beyond  all  control  and  supervision  of 
the  owners, — are  cogent  reasons  for  holding  those  who  associate 
in  these  connected  lines  to  a  rule  that  shall  give  effectual  and 
convenient  remedy  to  the  owner,  whose  goods  have  been  lost 
or  damaged  in  any  part  of  the  line.  Any  rule  which  should 
have  the  effect  to  defeat  or  embarrass  the  o^\Tier  's  remedy  would 
be  in  direct  conflict  with  the  principles  and  whole  policy  of  the 
common  law. 

What,  then,  is  the  situation  of  the  owner,  whose  goods  have 
been  damaged  or  lost  on  a  continuous  line  of  three  or  any  larger 
number  of  associated  carriers,  if  he  can  look  only  to  the  carrier 
on  whose  part  of  the  route  the  damage  may  have  happened? 
In  the  first  place,  he  must  set  about  learning  where  his  loss  hap- 
pened. This  would  often  be  difficult,  and  sometimes  quite  im- 
possible. Suppose  an  invoice  of  flour,  shipped  in  good  order 
at  Ogdensburgh,  were  found,  on  arrival  at  Boston,  to  have  been 
damaged  somewhere  on  the  route;  or  suppose  a  trunk,  checked 
at  Boston  for  Chicago,  was  broken  open  and  plundered  before 
it  reached  Chicago,  what  v.'ould  the  owner's  chance  be  worth  of 

505 


§  124  TERMINATION  OF  CAERIER'S  RELATION. 

finding  out  in  what  particular  part  of  the  route  the  damage  hap- 
pened?   He  would  have  no  means  of  learning  himself;  and  he 
would  not,  unless  of  a  very  confiding  disposition,  rely  on  any 
very  zealous  aid  in  his  search  from  the  different  carriers  asso- 
ciated in  the  connected  line.     And  if  he  should  have  the  luck 
to  make  the  discovery,  he  might  be  obliged  to  assert  his  claim 
for  compensation  against  a  distant  party,  among  strangers,  in 
circumstances  such  as  would  discourage  a  prudent  man,  and 
induce  him  to  sit  down  patiently  under  his  loss  rather  than  incur 
the  expense  and  risk  of  pursuing  his  legal  remedy  under  the 
rule  set  up  by  these  defendants.     The  forlorn  condition  of  the 
owner  in  such  a  case  is  put  in  a  strong  light  by  Waite,  C.  J.,  in 
his  dissenting  opinion,  Elmore  v.  The  Naugatuck  Railroad,  23 
Conn.  457,  63  Am.  D.  143,  where  he  says:    "A  merchant  residing 
in  Cleveland,  Toledo  or  Chicago,  purchases  goods  in  the  city  of 
New  York,  which  he  washes  to  send  to  his  place  of  business. 
He  enters  into  a  contract  with  a  railroad  company  for  their 
transportation,  not  to  any  given  point  on  the  route,  but  for  the 
whole  distance.    He  delivers  the  goods  to  the  company,  and  they 
are  taken  and  locked  up  in  freight  cars.    He  does  not  accompany 
them,  and  often  sees  and  hears  nothing  more  of  them  until  they 
are  delivered  to  him  at  their  place  of  destination.     The  cars  in 
which  they  are  placed  are  often  run  over  roads  belonging  to 
different  companies,  to  save  trouble  and  expense  of  change  of 
cars.    If  the  goods  are  lost  or  damaged  on  the  route,  he  ordinarily 
has  no  means  of  determining  where  or  in  whose  custody  the 
injury  occurred.     The  trouble  and  expense  of  ascertaining  that 
fact  in  many  cases  would  amount  to  more  than  the  whole  dam- 
age.   As  a  prudent,  cautious  man,  he  would  be  unwilling  to  in- 
trust his  goods  to  the  custody  of  others,  unless  he  could  find 
some  person  or  company  that  would  be  responsible  for  their 
safe  delivery."    The  remarks  of  Smith,  J.  (34  N.  Y.  501) ,  before 
cited,  are  of  the  same  import,  showing  the  difficulties  and  em- 
barrassments of  the  owner,  if  he  can  only  resort  for  compen- 
sation to  the  carrier  in  the  connected  line  on  whose  part  of  the 
route  the  damage  happened. 

A  rule  which  throws  such  difficulties  in  the  way  of  the  owner 
who  seeks  to  recover  of  common  carriers  for  the  loss  of  his  goods, 
I  cannot  but  regard  as  a  wide  departure  from  the  general  doc- 
trine of  the  common  law  on  this  subject ;  and  nothing  is  plainer 
than  the  duty  of  courts  to  apply  the  general  principles  of  the 
common  law  to  the  new  circumstances  which  are  introduced 
by  changes  in  the  manner  of  transacting  any  business. 

Few  things  are  of  greater  importance  to  the  whole  country 
than  the  cheap,  convenient  and  safe  transportation  of  goods  be- 

506 


NASHUA  LOCK  CO.  v.  W.  AND  N.  K.  E.  CO.  §  124 

tween  distant  points.  Vast  sums  of  money  are  expended  to  pro- 
mote this  object.  The  business  is  already  immense  and  con- 
stantly increasing.  Most  of  the  business  is  done  on  connecting 
lines  of  railroads  and  steamboats,  and  these  by  continuous  lines 
have  a  practical  monopoly  of  the  business  on  their  respective 
roads.  The  owner  of  goods  must  intrust  them  to  these  associated 
carriers;  they  cannot  be  carried  in  any  other  way.  Not  only 
those  who  are  engaged  directly  in  carrying  and  sending  goods 
are  interested  in  this  subject;  all  who  produce  and  all  who  con- 
sume are  interested  that  goods  should  be  carried  as  cheaply,  as 
conveniently  and  as  safely  as  possible.  Public  policy  and  the 
public  interest  concur  with  the  general  maxim  of  the  law,  that 
those  who  transact  this  great  business  should  be  held  to  a  rule 
which  shall  give  a  ready  and  effectual  remedy  to  the  owner 
whose  goods  have  been  lost  or  damaged  in  any  part  of  these 
connected  lines  of  transportation. 

There  is  a  perplexing  diversity  of  decision  on  this  subject 
in  the  different  tribunals  of  this  country.  For  instance,  by  the 
law  of  New  York,  as  we  understand  it  to  be  established  by  the 
construction  which  the  courts  have  given  to  their  statute,  if  goods 
are  received  in  that  state  for  transportation  through  on  a  con- 
nected line  of  railroads,  the  road  that  receives  the  goods  is  liable 
for  loss  or  damage  happening  in  any  part  of  the  connected  line, 
though  beyond  the  limits  of  the  state.  Burtis  v.  The  Buffalo  & 
State  Line  Railroad,  qua  supra.  As  has  before  been  mentioned, 
there  is  a  connected  line  of  six  or  seven  railroads  extending  from 
Ogdensburgh  to  Boston.  If  goods  are  received  by  the  Ogdens- 
burgh  railroad  for  transportation  to  Boston,  and  are  lost  or  dam- 
aged on  any  part  of  the  line,  say  on  the  Lowell  railroad,  the 
Ogdensburgh  railroad  is  liable  for  the  loss.  But  if  merchandise 
is  received  at  Boston  by  the  Lowell  railroad  for  transportation 
to  Ogdensburgh  over  the  same  connected  line  of  railroads  asso- 
ciated under  the  same  agreement,  the  owner  would  be  left  to 
find  out,  if  he  could,  on  which  of  the  six  or  seven  connected 
roads  his  goods  were  lost  or  damaged,  and  could  claim  for  his 
loss  of  that  road  alone.  There  w^ould  seem  to  be  no  remedy  for 
this  confusion  and  conflict  of  decisions  unless  the  national  legis- 
lature can  provide  one  under  the  power  given  by  the  constitution 
to  regulate  commerce, 

I  come  to  the  conclusion  that,  on  the  case  stated,  the  plaintiffs 
are  entitled  to  recover;  and  such  is  the  unanimous  opinion  of 
the  court. 


507 


§  125  TERMINATION  OF  CAREIEE  'S  RELATION. 

125.     QUIMBY  V.  VANDERBILT, 

17  N.  Y.  306;  72  Am.  D.  469.     1858. 

Action  on  a  contract  to  carry  defendant  from  New  York  to 
San  Francisco  via  defendant 's  steamer  to  the  Isthmus  of  Panama, 
thence  by  Accessory  Transit  Co.  's  conveyance  to  the  Pacific,  and 
to  San  Francisco  by  Pacific  steamers.  One  agent  acted  for  the 
three  lines,  but  sold  three  separate  tickets,  and  accounted  sep- 
arately to  the  proprietors  of  each  line  for  the  tickets  sold  on 
that  line.  Plaintiff  was  safely  carried  to  the  isthmus,  but  was 
not  promptly  carried  across  and  in  consequence  missed  the 
Pacific  steamer.  The  jury  found  that  defendant  had  made  a 
through  contract  and  gave  verdict  for  plaintiff. 

By  Court,  Denio,  J.  The  plaintiff  relies  upon  an  express 
contract  by  which,  as  he  alleges,  the  defendant  engaged  to  cause 
him  to  be  carried  from  New  York  to  San  Francisco;  and  the 
single  question  of  law  involved  in  the  case  is  whether  there  was 
evidence  of  such  a  contract  proper  to  be  submitted  to  the  jury. 
If  it  should  be  conceded  that  there  was  no  such  connection  be- 
tween the  three  lines  of  transportation  as  would  entitle  the 
defendant,  as  the  representative  of  the  whole,  to  contract  in 
their  behalf  for  the  carriage  of  persons  and  property  the  entire 
distance  from  New, York  to  California,  it  was  yet  quite  compe- 
tent for  him  to  bind  himself  to  the  plaintiff  by  an  express  con- 
tract, not  only  to  carry  him  over  his  own  proper  portion  of  the 
line,  but  that  the  other  transportation  companies  should  succes- 
sively take  him  up  upon  his  arrival  at  the  commencement  of 
their  respective  routes,  and  carry  him  over  the  same  until  he 
should  arrive  at  his  destination  at  San  Francisco.  The  English 
courts  hold  that  where  property  is  embarked  ujjon  a  railroad  or 
other  line  of  transportation,  addressed  to  a  place  beyond  the 
terminus  of  the  line,  but  which  may  be  reached  by  other  lines 
of  carriage  running  in  connection  with  it,  a  contract  arises  be- 
tween the  first-mentioned  company  and  the  owner  of  the  prop- 
erty that  it  shall  be  carried  to  its  place  of  destination  :  Muschamp 
V.  Lancaster  and  Preston  Railway  Company,  8  Mee.  &  W.  421; 
Watson  V.  Ambergate  etc.  Railway  Company,  3  Eng,  L.  &  Eq. 
497 ;  and  this  court  has  determined  that  the  agent  of  a  railway 
company  may  bind  his  principals  by  a  contract  for  carriage  over 
other  roads  running  in  connection  with  his  own :  Hart  v.  Rens- 
selaer and  Saratoga  Railroad  Company,  8  N.  Y.  37,  59  Am.  Dee. 
447.  The  late  court  of  errors,  in  my  opinion  very  wisely,  limited 
the  English  rule  above  mentioned,  by  holding  that  evidence  was 

508 


QUIMBY  V.  VANDERBILT.  §  125 

admissilile  to  show  that  by  the  course  of  business  a  transporta- 
tion line  receiving  property  without  any  express  contract,  under- 
took only  to  carry  it  over  its  own  line,  and  then  place  it  in  the 
hands  of  the  carriers  over  the  next  route,  and  that  it  discharged 
its  obligation  to  the  owners  by  delivering  it  to  a  responsible 
company  next  in  order  in  its  passage  to  the  place  of  destination : 
Van  Santvoord  v.  St.  John,  6  Hill,  157.  All  the  cases  assume 
that  the  company  to  which  the  goods  are  delivered  may  law- 
fully contract  for  the  performance  of  the  other  lines  running  in 
connection  with  its  own,  as  well  as  for  its  proper  route;  and 
there  is  no  difference  in  principle,  in  this  respect,  between  con- 
tracts for  the  carriage  of  persons  and  for  the  transportation  of 
property. 

But  the  defendant's  counsel  contends  that  the  tickets  which 
the  plaintiff  received  for  the  passage  over  the  several  routes  are, 
in  themselves,  written  evidence  of  the  bargains  by  which  he  en- 
gaged his  passage,  and  that  he  is  precluded  from  contradicting 
them  by  parol  testimony  of  an  entire  contract  with  the  defend- 
ant. We  do  not  think  this  a  sound  position.  The  tickets  do 
not  purport  to  be  contracts.  They  are  rather  in  the  nature  of 
receipts  for  the  separate  portions  of  the  passage-money;  and 
their  office  is  to  serve  as  tokens  to  enable  the  persons  having 
charge  of  the  vessels  and  carriages  of  the  companies  to  recognize 
the  bearers  as  parties  who  were  entitled  to  be  received  on  board. 
They  are  quite  consistent  with  a  more  special  bargain.  Being 
the  usual  permits  which  were  issued  for  the  guidance  of  the 
masters  of  the  vessels  and  the  conductors  of  the  carriages,  they 
would  necessarily  be  given  to  the  passenger  to  facilitate  the 
transaction  of  the  business,  whatever  the  nature  of  his  arrange- 
ment for  passage  may  have  been.  Their  character  as  mere 
tokens  is  shown  by  the  fact  that  the  defendant  received  them  in 
large  numbers  of  the  Transit  company,  not  as  an  agent  of  that 
company  for  the  purpose  of  making  bargains  in  its  behalf  with 
others,  but  to  furnish  them  to  persons  with  whom  he  expected 
to  deal  on  his  own  account.  In  Hart  v.  Rensselaer  and  Saratoga 
Railroad  Company,  just  referred  to,  the  plaintiff  had  separate 
tickets  for  each  of  the  roads  over  which  she  traveled,  but  she 
was  permitted  to  recover  against  one  of  the  companies,  though 
unable  to  show  that  her  baggage  was  lost  on  the  route  of  that 
company.  We  do  not  say  that  the  receiving  of  separate  tickets 
for  the  different  lines  is  not  evidence  of  some  weight  upon  the 
question  whether  the  contract  was  entire,  but  we  hold  that  it 
does  not  come  within  the  rule  which  excludes  parol  testimony 
respecting  a  contract  which  has  been  reduced  to  writing. 

There  was  positive  evidence  of  a  verbal  contract  between  the 

509 


§  125  TEEMINATION  OF  CAEEIEE  'S  EELATION. 

plaintiff  and  Allen  for  carrying  the  former  from  New  York  to 
San  Francisco.  The  plaintiff  applied  at  the  office  to  obtain 
such  passage,  and  he  was  promised  it  for  two  hundred  and  fifty 
dollars.  The  tickets  were  then  given  him  to  secure  his  admis- 
sion to  the  different  vehicles  of  the  line.  In  this  Allen  pro- 
fessed to  act  as  the  agent  or  clerk  of  some  one.  So  far  as 
the  steamships  on  the  Atlantic  were  concerned,  he  was  the 
agent  of  the  defendant,  and  no  question  is  made  but  that  he 
was  authorized  to  bind  the  defendant  thus  far.  It  is  equally 
clear  to  my  mind  that  he  was  authorized  to  bind  him  by  con- 
tracts for  carrying  passengers  across  the  isthmus.  The  Transit 
company  did  not,  as  a  general  thing,  sell  any  tickets  to  trav- 
elers ;  nor  did  they  make  any  contracts  for  passage  except  with 
the  defendant.  To  him  they  sold  tickets,  in  the  nature  of  per- 
mits for  passage  over  their  route,  in  such  quantities  as  he  chose 
to  purchase.  It  is  proved  that  neither  he  nor  Allen  were  agents 
for  the  Transit  company.  When  he  dealt  with  a  traveler,  there- 
fore, he  bargained  on  his  own  account,  and  not  on  behalf  of 
the  Transit  company.  He  might  have  charged  more  or -less 
than  he  paid  the  company.  It  was  certainly  possible  for  him 
to  dispose  of  one  of  these  permits  by  an  arrangement  with  the 
passenger  so  special  that  the  latter  should  have  no  recourse  to 
him ;  but  if  he  engaged  in  terms  that  the  purchaser  should 
be  carried  across  the  isthmus,  and  gave  him  one  of  the  Transit 
company's  tickets  to  show  his  title  to  be  admitted  on  board 
their  boats  and  carriages,  he  was  the  principal  in  that  contract, 
and  must  answer  for  its  breach.  He  placed  these  tickets  in  the 
hands  of  Allen,  who  was  accustomed  to  deliver  them  to  passen- 
gers in  connection  with  such  contracts  as  the  one  he  made  with 
the  plaintiff.  Allen  admitted  on  his  examination  that  he  charged 
the  gross  sum  of  two  hundred  and  fifty  dollars  for  the  entire 
passage,  without  any  specification  of  the  amount  belonging  to 
the  separate  branches  of  the  line;  and  there  is  not  the  slightest 
evidence  that  on  any  occasion  he  sold  the  tickets  to  be  taken 
at  the  risk  of  the  passenger,  or  in  connection  with  any  arrange- 
ment except  such  as  I  have  mentioned.  The  facts  that  the  de- 
fendant purchased  the  tickets  of  the  Transit  company;  that 
he  placed  them  in  the  hands  of  his  agent  Allen  for  delivery  to 
passengers ;  that  the  latter  was  accustomed  to  dispose  of  them  in 
connection  with  contracts  for  passage  over  the  entire  route ;  and 
that  he  transacted  the  business  in  an  office  occupied  also  by  the 
defendant,  and  acted  under  his  general  direction — were  sufficient 
prima  facie  to  charge  the  defendant  as  principal  in  these  con- 
tracts. 

As  the  detention,  which  prevented  the  plaintiff  from  reaching 

510 


CONDON  V.  M.,  H.  &  0.  E.  E.  CO.  §§  125,  126 

the  steamship  Independence  before  she  sailed,  occurred  -upon 
the  isthmus,  the  defendant  is  chargeable  in  this  action  when  it 
is  shown  that  such  detention  was  a  breach  of  his  contract,  even 
though  it  should  be  held  that  the  plaintiff  contracted  with  other 
parties  for  his  passage  upon  the  Pacific  coast.  But  I  think  there 
was  sufficient  evidence  to  enable  the  jury  to  find  that  the  defend- 
ant was  the  principal  in  the  contract  which  Allen  made  with  the 
plaintiff  for  the  entire  passage.  The  terms  of  the  card  which 
was  given  to  the  plaintiff  when  he  received  his  ticket,  and  of  the 
advertisement  which  was  posted  at  the  door  of  the  office,  which 
the  plaintiff  read  when  he  went  to  secure  his  passage,  looked  to 
contracts  for  the  whole  distance.  The  defendant's  connection 
with  the  office  and  with  Allen  was  sufficient  prima  facie  to  charge 
him  with  a  knowledge  of  the  contents  of  these  papers,  and  he  is 
to  be  looked  upon  as  their  author.  Being  known  to  both  parties 
to  the  contract  for  passage,  they  afford  the  means  of  ascertaining 
what  that  contract  was  if  it  were  otherwise  equivocal.  If  we 
add  to  this  evidence  the  fact  that  the  defendant  was  the  owner 
of  a  moiety  of  two  of  the  steamships  which  ran  on  the  Pacific 
side,  and  that  he  was  a  party  to  the  arrangement  by  which  the 
Independence,  owned  substantially  by  the  Schuylers,  was  em- 
ployed in  that  navigation  in  connection  with  the  other  routes, 
a  case  was  made  out  which  was  not  only  suitable  for  the  con- 
sideration of  the  jury,  but  which,  in  our  opinion,  fully  war- 
ranted the  verdict  which  they  gave. 

The  judgment  of  the  court  of  common  pleas  should  be  affirmed. 

All  the  judges  concurred. 


126.     CONDON  V.  MARQUETTE,  HOUGHTON  &  ONTONA- 
GON RAILROAD  CO., 

55  Mich.  218;  54  Am.  R.  367.     1884. 

Action  for  value  of  freight. 

Plaintiff  shipped  goods  from  New  York  over  several  connect- 
ing lines  to  himself  at  Hancock,  Michigan.  They  were  delivered 
to  defendant  March  12th,  1883,  and  carried  to  its  terminus  at 
L'Anse  next  day.  They  were  there  stored  in  defendant's  ware- 
house awaiting  their  further  carriage  by  the  L  'Anse  and  Hough- 
ton Overland  Transportation  Co.,  as  there  was  no  railroad  be- 
yond L'Anse.  The  Transportation  Co.  was  accustomed  to 
examine  the  books  of  defendant  to  ascertain  what  goods  were 
to  be  taken  by  it,  and  to  transport  from  the  warehouse  such 
goods  to  Hancock  or  other  places  in  sleighs  or  other  vehicles, 

511 


§  126  TEEMINATION  OF  CAERIEE'S  RELATION. 

March  20th,  before  the  Transportation  Co.  had  called  for  the 
goods,  they  were  destroyed  by  fire.  No  notice  had  been  given 
by  defendant  to  plaintiff  or  to  the  Transportation  Co.  The 
goods  had  simply  remained  in  the  warehouse.  Plaintiff  claimed 
of  defendant  their  value,  and  that  being  refused  he  brought 
this  suit.  The  court  below  instructed  that  if  defendants  re- 
ceived the  goods  they  remained  common  carriers  during  the 
transportation  of  the  goods,  and  after  their  arrival  for  such 
reasonable  time  as,  according  to  the  usual  course  of  business 
with  the  Transportation  Co.,  would  enable  defendant  to  deliver 
the  goods  to  that  company,  and  no  delay  of  the  Transportation 
Co.  would  exonerate  defendant  from  this  liability.  Its  duty  was 
to  deliver  or  offer  to  deliver  the  goods  to  the  Transportation 
Co.,  and  if  they  were  not  so  delivered  or  offered  plaintiff  was 
entitled  to  recover.  Judgment  for  plaintiff,  and  defendant 
brings  error. 

CooLEY,  C.  J.  (After  stating  the  facts.)  The  question  which 
the  instruction  presents  is  one  upon  which  the  authorities  are 
somewhat  divided.  It  received  careful  attention  at  the  hands 
of  the  New  York  Court  of  Appeals  in  McDonald  v.  Western  Rail- 
road Corporation,  34  N.  Y.  497,  where  several  opinions  were  de- 
livered. The  facts  upon  which  the  decision  was  to  be  made 
were  in  all  respects  similar  to  those  now  before  us,  and  the 
judges  were  unanimous  in  holding  that  the  railroad  company 
was  liable.  Wright,  J.,  said:  "The  goods  had  been  received 
by  the  defendants  at  Chatham,  to  be  transported  to  Binghamton 
by  way  of  the  Erie  and  Chenango  canal.  Their  obligation  there- 
fore was  to  carry  the  goods  safely  to  the  end  of  their  road  and 
deliver  them  to  the  next  carrier  on  the  route  beyond.  A  carrier 
in  such  case  does  not  release  himself  from  liability  by  simply 
unloading  the  goods  at  the  end  of  his  route,  and  placing  them 
in  his  own  storehouse,  without  delivery  or  notice  to,  or  any  at- 
tempt to  deliver  to,  the  next  carrier."  Hunt,  J.,  in  a  concurring 
opinion,  referring  to  Ladue  v.  Griffith,  25  N.  Y.  364,  82  Am.  D. 
360,  as  a  somewhat  similar  case,  said:  "The  defendants  in  the 
present  case  did  no  act  indicating  that  they  had  renounced 
the  liability  of  a  carrier.  They  simply  unloaded  and  deposited 
goods  in  their  warehouse.  Had  this  deposit  been  made  in  the 
warehouse  of  a  company  engaged  in  canal  transportation  west- 
wardly,  it  would  have  been  an  act  of  great  significance.  But 
here  the  fact  is  expressly  found  that  it  was  the  custom  of  the 
further  carrier  to  take  the  goods  from  the  defendant's  depot. 
The  liability  of  the  further  carrier  did  not  commence  until  he 
removed  the  goods  from  the  defendants'  warehouse.    The  deposit 

512 


CONDON  V.  M.,  H.  &  0.  R.  R.  C  §  126 

therefore  by  the  defendants  in  their  own  warehouse  did  not 
afford  any  evidence  of  a  renunciation  of  the  carrier's  liability." 
And  he  added  that  the  deposit  of  the  goods  in  the  warehouse  was 
to  be  considered  a  mere  accessory  to  the  carriage  by  defendant, 
and  their  liability  as  carrier  was  therefore  unbroken. 

This  decision  was  approved  as  sound  and  followed  as  authority 
in  Mills  V.  Michigan  Cent.  R.  Co.,  45  N.  Y.  622,  6  Am.  Rep. 
152,  and  it  is  undoubtedly  the  settled  law  of  New  York  at  this 
time.  The  same  doctrine  was  laid  down  in  Conkey  v.  Milwaukee, 
etc.,  R.  Co.,  31  Wis.  619,  11  Am.  Rep.  630,  in  a  forcible 
opinion  by  Dixon,  C.  J.,  and  also  in  Irish  v.  Milwaukee,  etc.,  R. 
Co.,  19  Minn.  376,  18  Am.  Rep.  340,  which  cites  with  ap- 
proval the  case  in  34  N.  Y,  Reports.  The  like  doctrine  also  ap- 
pears to  be  recognized  in  Erie  Railroad  Co.  v.  Lockwood,  28  Ohio 
St.  358 ;  Brintnall  v.  Saratoga,  etc.,  R.  Co.,  32  Vt.  665 ;  Packard 
V.  Taylor,  35  Ark.  402,  37  Am.  Rep.  37;  and  Louisville, 
etc.,  R.  Co.  V,  Campbell,  7  Heisk.  253.  It  was  also  affirmed  in 
Michigan  Cent.  R.  Co.  v.  Manufacturing  Co.,  16  Wall  318.  This 
last  case  expresses  views  not  in  harmony  with  the  opinion  of  this 
court  respecting  a  certain  clause  in  the  charter  of  the  Michigan 
Central  Railroad  Company  as  expressed  in  Michigan  Central 
R.  Co.  V.  Hale,  6  Mich.  243,  and  Same  Company  v.  Lantz,  32 
Mich.  503;  yet  as  the  question  now  under  consideration  was 
considered  and  decided  by  the  court  upon  common-law  princi- 
ples, the  conflict  of  views  on  the  question  of  construction  is  of  no 
importance  in  this  case. 

We  think  these  cases  lay  down  a  rule  which  is  just  to  shippers 
of  goods,  and  not  unreasonably  burdensome  to  carriers.  The 
shipper  delivers  his  goods  to  a  carrier,  who  becomes  insurer  for 
their  safe  transportation;  and  if  the  operations  of  one  carrier 
cover  a  part  only  of  the  line  of  transit,  and  another  is  to  receive 
the  goods  from  him,  the  shipper  has  a  right  to  understand  that 
the  liability  of  an  insurer  is  upon  some  one  during  the  whole 
period.  The  duty  of  the  one  is  not  discharged  until  it  has  been 
imposed  upon  the  succeeding  carrier;  and  this  is  not  done  until 
there  is  delivery  of  the  goods,  or  at  least  such  a  notification 
to  the  succeeding  carrier  as,  according  to  the  course  of  the  busi- 
ness, is  equivalent  to  a  tender  of  delivery.  There  is  nothing 
in  this  which  is  burdensome  to  the  carriers;  for  this  is  the  cus- 
tomary method  in  which  the  business  is  done ;  and  the  rule  only 
requires  that  the  customary  method  shall  be  pursued  without 
unreasonable  delay  or  negligence. 

The  connecting  carriers  in  this  case  appear  to  have  established 
a  custom  of  their  own,  under  which  actual  delivery  of  the  goods 
or  notice  to  take  them  was  dispensed  with,  and  the  one  was  to 
33  513 


§§  126,  127        TEKMINATION  OF  CAEEIEE'S  EELATION. 

ascertain  from  the  books  of  the  other  what  goods  were  ready  for 
reception  and  further  carriage.  This,  as  between  themselves, 
was  well  enough  while  it  worked  well;  but  it  was  an  arrange- 
ment to  which  the  plaintiff  was  not  a  party,  and  the  defendant 
could  not  by  means  of  it  relieve  itself  of  any  liability  which 
duty  to  the  plaintiff  imposed.  And  it  was  clearly  its  duty  to  the 
plaintiff,  as  we  think,  to  relieve  itself  of  the  responsibility  of 
the  goods  remaining  for  an  unreasonable  time  in  its  warehouse; 
and  to  do  this,  it  was  necessary  that  the  responsibility  be  trans- 
ferred to  the  carrier  next  in  line.  But  the  mere  permission  to 
inspect  its  books  and  take  whatever  was  ready  for  carriage 
would  not  do  this ;  there  should  have  been  distinct  notice  which 
would  apprise  the  other  carrier  that  defendant  expected  the 
removal  of  the  goods. 

In  this  case  there  were  no  facts  indicating  a  renunciation,  as 
to  these  goods,  of  the  liability  of  common  carrier  by  the  defend- 
ant, or  that  it  was  supposed  by  the  agents  of  the  defendant  that 
that  character  had  been  exchanged  for  any  other.  If  it  ever 
was,  it  must  have  been  at  the  moment  the  goods  were  received; 
for  nothing  took  place  afterward  to  change  the  relation  of  the 
defendant  to  the  goods  until  the  fire  took  place.  But  we  are  not 
ready  to  assent  to  the  doctrine  that  a  railroad  company,  as  to 
goods  transported  by  it,  ceases  to  be  carrier  the  moment  the 
goods  are  received  at  its  warehouse.  "We  do  not  think  that  is 
the  law,  or  that  it  ought  to  be. 

The  judgment  should  be  affirmed. 


127.     MOORE  V.  NEW  YORK,  NEW  HAVEN  &  HARTFORD 
RAILROAD  CO., 

173  Mass.  335;  53  N.  E.  R.  816;  73  Am.  St.  R.~ 298.     1899. 

Holmes,  J.  This  is  an  action  by  a  passenger  to  recover  for 
damage  to  her  luggage,  suffered  somewhere  in  the  course  of  a 
passage  from  Charleston,  Tennessee,  to  Boston.  The  passage 
was  over  six  connecting  railroads;  it  does  not  appear  where  the 
damage  was  done,  and  the  plaintiff  seeks  to  recover  upon  a  pre- 
sumption that  the  accident  happened  upon  the  last  road. 

The  so-called  presumption  was  started  and  justified  as  a  true 
presumption  of  fact,  that  goods  shown  to  have  been  delivered  in 
good  condition  remain  so  until  they  are  shovni  to  be  in  bad 
condition,  which  happens  only  on  their  delivery.  But  it  was 
much  fortified  by  the  argument  that  it  was  a  rule  of  convenience, 
if  not  of  necessity,  like  the  rule  requiring  a  party  who  relies 

514 


ALLEN  V.  MAINE  CENTEAL  EAILEOAD  CO.  §  §  127,  128 

upon  a  license  to  show  it:  1  Greenleaf  on  Evidence,  sec.  79; 
Pub.  Stats.,  c.  214,  sec.  12.  As  we,  in  common  with  many  other 
American  courts,  hold  the  first  carrier  not  answerable  for  the 
whole  transit,  and  not  subject  to  an  adverse  presumption 
(Farmington  Mercantile  Co.  v.  Chicago  etc.  R.  R.  Co.,  166  Mass. 
154,  44  N.  E.  R.  131),  it  is  almost  necessary  to  call  on  the  last 
carrier  to  explain  the  loss,  if  the  owner  of  the  goods  is  to  have 
any  remedy  at  all.  To  do  so  is  not  unjust,  since  whatever  means 
of  information  there  may  be  are  much  more  at  the  carrier's 
command  than  at  that  of  a  private  person.  These  considerations 
have  led  most  of  the  American  courts  that  have  had  to  deal  with 
the  question  to  hold  that  the  presumption  exists :  Smith  v.  New 
York  Cent.  R.  R.  Co.,  43  Barb.  225,  228,  229 ;  affirmed,  41  N.  Y. 
620;  Laughlin  v.  Chicago  etc.  Ry.  Co.,  28  Wis.  204,  9  Am.  Rep. 
493;  Memphis  etc.  R.  R.  Co.  v.  Holloway,  9  Baxt.  188,  191; 
Dixon  v.  Richmond  etc.  R.  R.  Co.,  74  N.  C.  538 ;  Leo  v.  St.  Paul 
etc.  Ry.  Co.,  30  Minn.  438 ;  15  N.  W.  R.  872 ;  Montgomery  etc. 
Ry.  Co.  V.  Culver,  75  Ala.  587,  51  Am.  R.  483 ;  Beard  v.  Illinois 
Cent.  Ry.  Co.,  79  Iowa,  518,  44  N.  W.  R.  800,  18  Am.  St.  R. 
381 ;  Savannah  etc.  Ry.  Co.  v.  Harris,  26  Fla.  148,  7  So.  R.  544, 
23  Am.  St.  R.  551;  Faison  v.  Alabama  etc.  Ry.  Co.,  69  Miss. 
569,  13  So.  R.  37,  30  Am.  St.  R.  577 ;  Forrester  v.  Georgia  R.  R. 
etc.  Co.,  92  Ga.  699,  19  S.  E.  R.  811.  In  the  opinion  of  the  court, 
the  weight  of  argument  and  authority  is  on  that  side.  Mr. 
Justice  Lathrop  and  I  have  not  been  able  to  free  our  minds  from 
doubt  because  we  are  not  fully  satisfied  that  the  court  has  not 
committed  itself  to  a  different  doctrine.  Still,  it  has  not  dealt 
with  it  in  terms.  In  Darling  v.  Boston  etc.  R.  R.  Co.,  11  Allen, 
295,  the  only  question  discussed  was  a  question  of  contract.  In 
Swetland  v.  Boston  etc.  R.  R.  Co.,  102  Mass.  276,  the  question 
was  as  to  frozen  apples.  It  appeared  that  the  weather  had  been 
very  cold  before  delivery  to  the  defendant.  The  presumption 
was  not  mentioned.  These  are  the  two  nearest  cases. 
Judgment  for  plaintiff. 


128.    ALLEN  V.  MAINE  CENTRAL  RAILROAD  CO., 

79  Me.  327;  9  Atl.  R.  895;  1  Am.  St.  R.  310.     1887. 

By  Court,  Emery,  J.  The  only  mooted  question  in  this  ease 
is,  whether  the  plaintiffs  effectually  exercised  against  the  carrier 
their  clear  right  of  stopping  the  goods  in  transitu. 

The  plaintiffs  seasonably  telegraphed  and  wrote  the  proper 
officer  of  the  defendant  company  (the  carrier)  to  stop  and 
return  the  goods.     The  defendant  company  contend  the  notice 

515 


§  128  TEEMINATION  OF  CAEEIEE'S  EELATION. 

was  insufficient,  because  there  was  no  statement  of  the  nature 
or  basis  of  the  claim  to  have  the  goods  stopped.  While  such 
a  statement  is  probably  usual,  it  does  not  seem  necessary  in  this 
ease.  The  carrier  is  presumed  to  know  the  law,  and  by  such 
a  notice  as  was  given  here  is  effectually  apprised  of  a  claim 
adverse  to  the  consignee,  as  well  as  of  a  claim  upon  himself.  In 
Benjamin  on  Sales,  1276,  while  it  is  said  that  the  usual  mode 
is  a  simple  notice  to  the  carrier,  stating  the  vendor's  claim,  etc., 
it  is  also  stated  that  "all  that  is  required  is  some  act  or  declara- 
tion of  the  vendor  countermanding  the  delivery."  Brewer,  J., 
in  Rucker  v.  Donovan,  13  Kan.  251,  19  Am.  Rep.  84,  said:  "A 
notice  to  the  carrier  to  stop  the  goods  is  sufficient.  No  particular 
form  of  notice  is  required."  In  Clemintson  v.  Grand  Trunk 
R'y  Co.,  42  U.  C.  Q.  B.  263,  while  it  was  held  that  the  notice  was 
faulty  in  not  identifying  the  goods,  it  was  said  that  a  specifica- 
tion of  the  basis  of  the  claim  was  not  necessary. 

The  defendant  further  contends  that  the  plaintiff's  omission 
to  afterward  prove  to  the  carrier  their  right  to  stop  the  goods, 
when  requested  by  the  carrier  to  do  so,  has  vacated  their  claim, 
and  released  the  carrier  from  liability.  But  the  carrier  is  not  the 
tribunal  to  determine  the  rights  of  the  consignor  and  consignee. 
Neither  of  these  parties  can  be  required  to  plead  or  make  proof 
before  the  carrier.  No  man  need  prove  his  case  to  his  adversary. 
It  is  sufficient  if  he  prove  to  the  court.  The  carrier  cannot  con- 
clusively adjudicate  upon  his  own  obligations  to  either  party. 
He  is  in  the  same  position  as  is  any  man,  against  whom  con- 
flicting claims  are  made.  If,  as  is  alleged  here,  the  circumstances 
are  such  that  he  cannot  compel  them  to  interplead,  he  must  in- 
quire for  himself,  and  resist  or  yield  at  his  peril. 

It  is  reasonable,  however,  that  the  person  assuming  the  right 
to  stop  goods  in  transit  should  act  in  good  faith  toward  the 
carrier.  He  should,  if  requested,  furnish  him,' in  due  time  with 
reasonable  evidence  of  the  validity  of  his  claim,  though  it  may 
not  amount  to  proof.  Should  the  consignor  refuse  such  reason- 
able information  as  he  may  possess,  such  refusal  might  be  con- 
strued as  a  waiver  of  his  peculiar  right,  and  might  justify  the 
carrier,  after  a  reasonable  time,  in  no  longer  detaining  the  goods 
from  the  consignee.  But  there  was  no  such  refusal  here.  The 
plaintiffs  sent  forward  the  invoice  and  their  affidavit  within  a 
reasonable  time. 

The  plaintiffs  have  now  proved  their  right  to  stop  the  goods, 
and  the  defendant  company,  having  denied  that  right  without 
good  reason,  must  respond  in  damages. 

Judgment  for  plaintiffs  for  $176.41,  with  interest  from  the 
date  of  the  writ. 

516 


PART  IV 
OF  QUASI-BAILEES 


CHAPTER  XIV. 

OF    CAKRIERS    OF    PASSENGERS. 

129.     HOAR  V.  MAINE  CENTRAL  RAILROAD  CO., 
70  Me.  65;  35  Am.  R.  299.     1879. 

Appleton,  C.  J.  The  material  and  substantive  allegations  in 
the  several  counts  in  the  plaintiff's  writs  are  that  the  defendants 
are  common  carriers  of  passengers  between  Waterville  and  West 
Waterville;  that  as  such  carriers  they  are  bound  to  carry  all 
passengers  and  persons  lawfully  on  their  road  carefully  and 
safely  over  the  same ;  that  the  plaintiff's  intestate,  being  invited 
by  one  Potter,  a  foreman  of  a  section,  in  their  employ  and 
trusted  by  them  with  the  care  and  control  of  one  of  their  hand- 
cars, to  ride  with  him  on  said  hand-car  from  Waterville  to  West 
Waterville,  accepted  the  invitation;  that  the  plaintiff's  intestate 
while  riding  was  run  over  by  one  of  the  defendant's  engines  to 
which  a  paymaster's  car  was  attached,  and  injured  so  that  he 
died,  and  that  this  was  through  the  negligence  of  the  defendants 
and  their  servants,  the  deceased  being  in  the  exercise  of  due 
care.  To  each  count  of  the  declaration  the  defendants  filed  a 
general  demurrer. 

I.  The  liability  of  a  railroad  company  differs  as  to  their  duty 
to  their  servants  and  to  passengers.  They  are  liable  to  servants 
for  injuries  resulting  from  want  of  due  care  in  the  selection  of 
fellow-servants,  but  if  duly  selected  they  do  not  guarantee  against 
their  negligence.  Blake  v.  M.  C.  R.  R.  Co.,  70  Me.  60,  35  Am.  R. 
297.  Not  so  as  to  passengers,  to  whom  they  are  responsible  for 
injuries  arising  from  their  negligence  or  incapacity,  irrespective 
of  the  question  of  more  or  less  care  in  their  selection.  It  is  ob- 
vious that  there  is  no  defect  in  the  declaration  so  far  as  it  relates 
to  the  negligence  of  the  defendants,  if  they  are  to  be  deemed 
common  carriers  by  hand-cars. 

517 


§  129  OF  CAEKIEES  OF  PASSENGEES. 

II.  The  plaintiff's  intestate  was  to  be  carried  gratuitously. 
But  that  does  not  place  him  in  a  different  position,  so  far  as  re- 
lates to  his  right  to  protection  from  neglect,  from  a  pay  passen- 
ger— if  he  is  to  be  regarded  as  a  passenger  to  be  carried  by  the 
defendants.  Phil.  &  Read  R.  R.  Co.  v.  Derby,  14  How.  468 ;  Wil- 
ton V.  Middlesex  R.  R.  Co.,  107  Mass.  108,  9  Am.  Rep.  11 ;  Whart. 
on  Neg.  §  355. 

III.  The  plaintiff  places  her  right  to  recover  upon  a  neglect 
by  the  defendants  of  their  duties  to  the  intestate  as  common 
carriers.  To  impose  upon  the  defendants  the  duties  and  respon- 
sibilties  of  common  carriers,  they  must  be  shown  to  be  such. 
The  grave  and  important  question,  then,  is  whether  the  defen- 
dants, though  common  carriers  of  passengers  along  their  road 
and  in  their  cars  for  that  purpose,  are  common  carriers  of  pas- 
sengers by  their  hand-cars  used  by  their  section  men.  Were 
the  defendants  chartered  as  common  carriers  save  by  their  cars 
for  passengers?  Have  they  by  their  acts  or  conduct  held  out 
to  the  public,  or  authorized  their  agents  to  hold  out  to  the  pub- 
lic, that  they  were  common  carriers  by  their  hand-cars?  If  they 
have  not  been  chartered,  and  have  not  in  any  way  held  them- 
selves out  as  common  carriers  by  hand-cars,  then  the  duties  and 
obligations  resting  upon  them  as  carriers  have  not  arisen. 

If  the  defendants  were  common  carriers  in  relation  to  the 
plaintiff' 's  intestate,  they  would  be  bound  to  carry  all  who  should 
apply.  Were,  then,  the  defendants  bound  to  carry  on  their 
hand-cars  any  one  asking  to  be  so  conveyed  ?     Assuredly  not. 

In  Graham  v.  Toronto,  Grey  &  Bruce  Railway  Co.,  23  Up.  Can. 
(C.  P.)  541,  the  defendants  agreed,  with  a  contractor  for  the 
construction  of  their  railway,  to  furnish  a  construction  train 
for  ballasting  and  laying  the  track  for  a  portion  of  their  road 
then  under  construction ;  the  defendants  to  provide  the  conduc- 
tor, engineer  and  fireman;  the  contractor  furnishing  the  brake- 
men.  On  October  31,  1872,  after  work  was  over  for  the  day 
and  the  train  was  returning  to  Owen  Sound,  where  the  plaintiff, 
one  of  the  contractor's  workmen,  lived,  the  plaintiff,  with  the 
permission  of  the  conductor  but  without  the  authority  of  the 
defendants,  got  on.  Through  the  negligence  of  the  person  in 
charge  of  the  train  an  accident  happened,  and  the  plaintiff  was 
injured.  "The  fact,"  remarks  Haggerty,  C.  J.,  "that  the  de- 
fendant's engine-driver  or  conductor  allowed  him  to  get  on  the 
platform,  does  not  alter  my  view  of  the  case. 

"I  cannot  distinguish  it  from  the  ease  of  a  cart  sent  by  its 
owner  under  his  servant's  care  to  haul  bricks  or  lumber  for  a 
house  he  is  building.  A  workman,  either  with  the  driver's  as- 
sent or  without  any  objection  from  him,  gets  upon  the  cart.     It 

518 


HOAE   V.   MAINE    CENTEAL    EAILROAD    CO.  §  129 

breaks  down,  or  by  careless  driving  runs  against  another  vehicle, 
or  a  lamp-post,  and  the  workman  is  injured.  I  cannot  under- 
stand by  what  process  of  reasoning  the  owner  can  in  such  case 
be  held  to  incur  any  liability  to  the  person  injured.  Nor,  in  my 
opinion,  would  the  fact  that  the  owner  was  aware  that  the  driver 
of  his  cart  often  let  a  friend  or  person  doing  the  work  at  his  house 
drive  in  his  cart,  make  any  difference.  *  *  *  It  could  never 
be,  I  think,  in  the  reasonable  expectation  of  these  defendants 
that  they  were  incurring  any  liability  as  carriers  of  passengers, 
or  that  they  should  provide  against  contingencies  that  might  af- 
fect them  in  that  character." 

A  similar  question  arose  in  Sheerman  v.  Toronto,  Grey  & 
Bruce  Railway  Co.,  34  Up.  Can.  (Q.  B.)  451,  where  one  of  the 
workmen  was  being  carried,  without  reward,  on  a  gravel  train, 
and  was  injured  so  that  he  died,  it  was  held  that  the  deceased 
was  not  lawfully  on  the  cars  with  the  consent  of  the  defendants, 
and  a  nonsuit  was  directed.  "The  workmen,"  observes  Wil- 
son, J.,  ''were  not  lawfully  on  the  cars.  They  were  not  passen- 
gers being  carried  by  the  defendants.  They  were  acting  on 
their  own  risk,  not  at  the  risk  of  the  defendants,  and  however 
unfortunate  the  disaster  may  have  been,  it  is  only  right  the  legal 
responsibility  should  fall  on  those  who  ought  to  bear  it,  and  not 
upon  those  upon  whom  it  does  not  rest."  In  this  case  "it  ap- 
peared that  it  was  not  necessary  the  defendants  should  carry 
the  men  to  and  from  their  work,  and  that  they  never  agreed  to 
do  more  than  to  provide  cars  for  carrying  ballasting  and  mate- 
rials for  track  laying." 

The  defendants  not  being  common  carriers,  so  far  as  relates 
to  their  liability  to  the  plaintiff's  intestate,  the  declaration  not 
disclosing  facts  which  show  such  liability,  must  be  adjudged 
bad.  Eaton  v.  Delaware,  L.  &  W.  R.  R.  Co.,  57  N.  Y.  382, 
15  Am.  Rep.  513 ;  Union  Pacif .  R.  R.  Co.  v.  Nichols,  8  Kans.  505 ; 
12  Am.  Rep.  475;  in  Dunn  v.  Grand  Trunk  Ry.  Co.,  58  Me. 
187,  4  Am.  Rep.  267,  the  plaintiff  was  riding  in  a  saloon 
car  attached  to  a  freight  train,  and  paid  the  customary  fare  for 
conveyance  in  a  passenger  car, 

IV.  A  master  is  bound  by  the  acts  of  his  servant  in  the  course 
of  his  employment,  but  not  by  those  obviously  and  utterly  out- 
side of  the  scope  of  such  employment.  If  not  common  carriers, 
a  section  foreman  with  his  hand-car  has  no  right  to  impose  upon 
the  defendants  the  onerous  responsibilities  arising  from  that  re- 
lation. He  has  no  right  to  accept  passengers  for  transportation 
and  bind  the  defendants  for  their  safe  carriage,  and  every  man 
may  safely  be  presumed  to  know  thus  much. 

If  the  risk  is  much  greater  by  this  mode  of  conveyance,  the 

519 


§§  129,  130  OF  CAEEIEES  OF  PASSENGEES. 

plaintiff's  intestate  by  adopting  it  assumed  the  extra  risks  aris- 
ing therefrom,  and  must  be  held  to  abide  the  unfortunate  conse- 
quences. 

No  one  becomes  a  passenger  except  by  the  consent,  express  or 
implied,  of  the  carrier.  There  is  no  allegation  of  express  con- 
sent by  the  defendants,  nor  of  anji;hing  from  which  consent  can 
be  implied  that  the  plaintiff's  intestate  should  be  carried  at  their 
risk  by  this  unusual  mode  of  conveyance. 

Declaration  bad. 

Walton,  Barrows,  Virgin  and  Libbey,  JJ.,  concurred. 


130.    BRICKER  V.  PHILADELPHIA  AND  READING 
RAILROAD  CO., 

132  Pa.  St  1;  18  Atl.  R.  983;  19  Am.  St.  R.  585.     1890. 

Trespass,  by  Elizabeth  S.  Bricker  to  recover  damages  for  the 
death  of  her  husband  in  a  collision.  A  few  moments  before,  feel- 
ing ill,  he  had  gone  into  the  mail  car,  where  the  postal  clerk  gave 
him  some  medicine.  The  conductor  had  not  asked  for  his  ticket, 
but  a  ticket  good  for  the  transportation  was  found  on  the  per- 
son of  the  deceased.     Appeal  from  a  judgment  of  nonsuit. 

McCoLLUM,  J.  There  is  no  evidence  in  this  case  which  war- 
rants an  inference  that  the  defendant  company  accepted  Bricker 
as  a  passenger  on  its  train  from  Port  Clinton  to  Tamaqua.  He 
entered  a  car  which  he  knew  was  not  provided  for  the  transporta- 
tion of  passengers.  He  was  on  the  train  without  the  knowledge 
or  consent  of  the  company,  and  in  a  place  where  its  employees, 
in  the  discharge  of  their  ordinary  duties,  would  not  discover  him. 
It  was  a  place  devoted  exclusively  to  the  railway  mail  service, 
and  in  charge  of  one  of  its  employees.  He  was  confronted  by 
an  order  of  the  superintendent  of  that  service,  forbidding  him 
to  remain  there.  He  was  not  there  for  any  purpose  which  re- 
lated to  a  duty  of  the  company  in  the  transportation  of  its  pas- 
sengers or  their  baggage. 

Upon  these  undisputed  facts  appearing  in  the  plaintiff's  evi- 
dence, no  contract  for  safe  carriage  existed  between  the  com- 
pany and  the  deceased,  A  passenger,  in  the  legal  sense  of  the 
word,  is  "one  who  travels  in  some  public  conveyance,  by  virtue 
of  a  contract,  express  or  implied,  with  the  carrier,  as  the  pay- 
ment of  fare  or  that  which  is  accepted  as  an  equivalent  there- 
for": Pennsylvania  R.  R.  Co.  v.  Price,  96  Pa.  St.  256.  In  Whar- 
ton on  Negligence,  sec.  354,  the  undertaking  of  the  carrier  is 

520 


WAEEEN  V.  FITCHBUEG  EAILEOAD   CO.    §§  130,  131 

thus  defined:  "A  carrier,  in  undertaking  to  carry  passengers 
safely,  undertakes  to  carry  them  safely  if  they  place  themselves 
under  his  direction  in  particular  places  prescribed  for  the  pur- 
pose ;  and  he  will  not  be  held  liable  for  damages  accruing  to  an 
interloper  who,  unnoticed  by  him,  hides  in  the  crevices  of  a  loco- 
motive or  in  the  hold  of  a  ship.  In  Patterson's  Railway  Acci- 
dent Law,  sec.  214,  it  is  stated  "that  the  existence  of  the  rela- 
tion of  carrier  and  passenger  is  dependent  upon  the  making  of 
a  contract  of  carriage.  From  this  it  follows  that  railways  are 
not  liable  to  persons  who  have  not  been  accepted  as  passengers, 
and  the  intention  of  the  person  to  pay  his  fare,  and  his  good 
faith,  are  immaterial,  where  there  has  been  no  contract,  express 
or  implied,  on  the  part  of  the  railway." 

These  quotations  from  standard  text-books  correctly  state  the 
law  on  the  subject  to  which  they  refer.  As  Bricker  was  not  a 
passenger,  and  was  on  the  train  without  the  consent,  express  or 
implied,  of  the  company,  it  owed  him  no  duty,  and  the  nonsuit 
was  rightly  ordered.  In  this  view  of  the  case,  it  is  unneces- 
sary to  consider  whether,  if  he  had  been  accepted  as  a  pas- 
senger, he  was  guilty  of  negligence  which  contributed  to  the  in- 
jury he  received,  and  which  caused  his  death. 

Judgment  affirmed. 


131.     WARREN  V.  FITCHBURG  RAILROAD  CO., 

•  8  Allen  (Mass.)  227;  85  Am.  D.  700.     1864. 

Tort  for  damages  caused  by  being  run  over  by  defendant's 
engine.  The  engineer  testified  that  his  train  was  going  about 
9  or  10  miles  an  hour,  and  that  the  whistle  was  blown  and  bell 
rung  as  usual  when  approaching  a  station.  Plaintiff  testified 
that  he  looked  to  see  where  he  should  take  his  train,  which  was 
coming  in  an  opposite  direction  on  another  track,  that  he  saw 
the  train  that  injured  him  only  20  or  30  feet  away  and  at  the 
same  instant  heard  its  whistle.  Further  facts  appear  in  the 
opinion.     Verdict  for  plaintiff  in  $5,750  damages. 

By  Court,  Hoar,  J.  The  plaintiff  could  not  recover  unless 
he  was  was  himself  using  due  care  at  the  time  when  he  received 
the  injury,  even  if  the  carelessness  of  the  defendants  occasioned 
it.  And  the  burden  of  proof  was  upon  him  to  show  that  he 
used  this  care.     So  much  is  clearly  settled. 

In  several  recent  cases  it  has  been  held  that  if  the  whole  evi- 
dence introduced  by  the  plaintiff  has  no  tendency  to  show  care 

521 


§  131  or  CAERIEKS  OF  PASSENGERS. 

on  his  part,  but,  on  the  contrary,  shows  that  he  was  careless,  it 
is  the  duty  of  the  court  to  direct  the  jury,  as  matter  of  law,  to 
return  a  verdict  for  the  defendant:  Lucas  v.  New  Bedford  and 
Taunton  R.  R.,  6  Gray  (Mass.)  64,  66  Am.  D.  406;  Gahagan  v. 
Boston  and  Lowell  R.  R.,  1  Allen  (Mass.)  187,  79  Am.  D^  724; 
Todd  V.  Old  Colony  and  Fall  River  R.  R.,  3  Allen  (Mass.)  18, 
80  Am.  D.  49;  Wilson  v.  City  of  Charlestown,  8  Allen  (Mass.) 
137,  85  Am.  D.  693. 

We  should  have  no  doubt,  if  the  evidence  in  the  case  at  bar 
had  disclosed  nothing  more  than  that  the  plaintiff  had  crossed 
a  railroad  track,  with  due  notice  of  its  existence,  and  without 
looking  to  see  whether  a  train  were  approaching,  that  the  prin- 
ciple of  those  cases  would  be  applicable  to  this.  Such  evidence, 
with  nothing  to  explain  or  qualify  it,  would  not  have  shown  the 
exercise  of  due  care,  but  the  contrary. 

But  we  are  of  opinion  that  the  other  facts  which  appeared  in 
evidence  had  a  very  important  bearing  upon  the  propriety  of  the 
plaintiff's  conduct,  and  that  all  the  circumstances  taken  together 
presented  a  case  which  was  proper  to  be  submitted  to  the  jury, 
and  which  the  court  could  not  rightfully  withdraw  from  their 
consideration. 

It  was  shown  that  the  plaintiff  had  purchased  his  ticket  en- 
titling him  to  a  passage  to  Boston,  and  was  waiting  in  the  pas- 
senger station  for  the  arrival  of  the  train ;  that  when  the  whistle 
of  the  approaching  train  was  heard,  the  station  agent  employed 
by  the  defendants  said  to  him:  "The  train  is  coming;  we  will 
cross  over."  Upon  receiving  this  information  and  direction,  the 
plaintiff  followed  the  station  agent  from  the  room  across  toward 
the  train,  which  had  arrived  and  stopped  before  he  came  out  on 
the  platform.  The  path  by  which  he  went  to  the  train  was  some- 
what oblique,  so  that  the  engine  which  struck  him  came  in  a  di- 
rection partially  behind  him.  Whether,  in  this  condition  of 
things,  in  his  anxiety  seasonably  to  reach  the  train,  which  would 
stop  but  a  moment,  the  plaintiff,  at  a  station  with  which  he  was 
not  familiar,  would  have  been  likely  to  be  thrown  off  his  guard 
by  the  direction  to  cross  over,  given  without  any  caution  or  qual- 
ification; whether  he  might  naturally,  and  without  subjecting 
himself  to  the  imputation  of  want  of  care,  have  considered  him- 
self under  the  charge  of  the  defendants'  agent,  with  an  assur- 
ance that  it  was  safe  and  proper  to  go  directly  to  the  cars,  were 
questions  for  the  jury,  and  not  for  the  court.  They  were  sub- 
mitted to  the  jury,  with  instructions  which  were  appropriate 
and  sufficient,  and  to  which,  in  the  opinion  of  this  court,  the 
defendants  had  no  just  ground  of  exception. 

The  next  exception  taken  was  to  the  instruction  given  to  the 

522 


WAEEEN  V.  FITCHBUEG  EAILROAD   CO.  §  131 

jury,  '  *  that  a  person  who  had  purchased  a  ticket  entitling  him  to 
a  passage  on  a  particular  train  was  to  be  considered,  while  pass- 
ing from  the  office  or  place  of  business  where  the  purchase  was 
made  to  the  train,  to  take  his  seat  in  one  of  the  cars  of  which  it 
consists,  as  a  passenger;  and  that  the  defendants  were  bound  to 
exercise  the  same  degree  of  care  in  providing  for  him  a  safe  and 
convenient  way  and  manner  of  access  to  the  train,  and  in  pre- 
venting the  interposition  of  any  obstacle  or  obstruction  which 
would  unreasonably  impede  him  or  expose  him  to  harm  or  in- 
jury while  proceeding  to  take  his  seat  in  the  cars,  as  in  the  subse- 
quent transportation  and  carriage  of  him."  We  think  this  in- 
struction, though  not  strictly  correct  as  a  general  proposition 
applicable  to  all  cases  of  the  kind,  was  not  erroneous,  if  taken 
with  the  qualifications  which  the  particular  case  afforded,  and 
which  must  have  been  obviously  understood  as  included  in  it. 
As  a  general  statement  it  was  too  broad,  because  a  passenger 
may  buy  his  ticket  at  an  office  which  is  not  in  the  same  town,  or 
even  in  the  same  state,  in  which  he  intends  to  take  the  cars. 
The  railroad  company  have  no  control  over  his  movements,  and 
he  does  not,  by  the  purchase  of  a  ticket,  put  himself  under  their 
charge.  But  if  he  is  "passing  from  the  office  or  place  of  busi- 
ness where  the  purchase  was  made  to  the  train,  to  take  his  seat 
in  the  cars,"  on  the  premises  belonging  to  the  company,  con- 
nected with  the  railroad,  and  under  the  direction  of  the  com- 
pany's agents,  given  to  him  as  a  passenger  with  whom  the  com- 
pany have  made  the  contract  for  conveyance  which  the  purchase 
of  the  ticket  creates,  as  was  the  case  with  the  plaintiff,  we  think 
he  is  to  be  considered  as  a  passenger,  and  entitled  to  the  rights 
of  a  passenger  while  so  passing.  It  is  the  duty  of  the  railroad 
company  to  afford  to  the  passengers  whom  they  undertake  to 
cany  in  their  cars  a  reasonable  and  safe  opportunity  to  pass 
from  the  room  or  building  in  which  they  receive  passengers  for 
transportation,  to  the  cars,  when  the  proper  time  comes  for  them 
to  take  their  seats.  The  purchasers  of  tickets  are  bound  to  com- 
ply with  all  reasonable  rules  and  orders  of  the  company  or  their 
agents,  as  much  when  going  to  the  cars  from  the  station-house, 
or  from  the  cars  to  a  place  of  safety  beyond  the  railroad  track, 
as  they  are  when  actually  on  board  the  train,  and  while  the 
transit  continues.  The  instruction  to  the  jury,  therefore,  seems 
to  have  been  sufficiently  adapted  to  the  circumstances  of  the 
3ase,  and  this  exception  cannot  be  sustained. 

The  remaining  exception  was  taken  to  the  terms  in  which  the 
judge  who  presided  at  the  trial  defined  the  degree  of  care  which 
the  law  imposes  upon  carriers  of  passengers  for  hire.  The  lan- 
guage used  was  precisely  that  in  which  the  rule  of  law  was  laid 

523 


§  131  OF  CAERIEES  OF  PASSENGERS. 

down  by  this  court  in  the  case  of  Ingalls  v.  Bills,  9  Met.  (Mass.) 
1,  43  Am.  D.,  346.  Upon  a  full  examination  and  review  of  the 
English  and  American  cases,  Mr,  Justice  Hubbard,  in  that  case, 
declared  the  result  to  be  "  that  carriers  of  passengers  for  hire  are 
bound  to  use  the  utmost  care  and  diligence  in  the  providing  of 
safe,  sufficient,  and  suitable  coaches,  harnesses,  horses,  and  coach- 
men, in  order  to  prevent  those  injuries  which  human  care  and 
foresight  can  guard  against ' ' ;  and  the  change  of  phraseology  in 
the  case  at  bar  was  only  that  required  to  adapt  this  rule  to  the 
circumstances  of  the  carriage  of  passengers  by  railroad. 

The  rule  in  its  full  extent  has  been  recognized  and  affirmed 
in  several  subsequent  decisions:  McElroy  v.  Nashua  and  Low- 
ell R.  R.,  4  Cush.  (Mass.)  400,  50  Am,  D.  794;  Schopman  v.  Bos- 
ton and  Worcester  R,  R.,  9  Cush.  (Mass.)  24,  55  Am,  D,  41. 
The  carriers  of  passengers  are  not,  like  the  carriers  of  goods, 
insurers  against  everything  but  the  act  of  God  and  public  ene- 
mies. But  they  are  bound  to  exercise  reasonable  care  according 
to  the  nature  of  their  contract;  and  as  their  contract  involves 
the  safety  of  the  lives  and  limbs  of  their  passengers,  the  law  re- 
quires the  highest  degree  of  care  which  is  consistent  with  the 
nature  of  their  undertaking. 

The  defendants  object  that  they  cannot  be  held  to  the  exercise 
of  the  utmost  care  and  diligence  which  human  care  and  fore- 
sight are  capable  of.  But  such  was  not  the  language  of  the  court. 
They  were  only  held  to  the  utmost  care  in  providing  suitable 
and  proper  carriages,  engines,  tracks,  and  agents,  in  order  to 
prevent  those  injuries  which  human  care  and  foresight  can 
guard  against.  The  object  is  to  prevent  such  injuries  as  are  the 
subject  of  human  care  and  foresight ;  that  is,  such  as  are  not  in- 
evitable. The  duty  is  to  use  the  utmost  care  in  regard  to  the 
ordinary  and  usual  appliances  and  means  of  carrying  on  their 
business.  They  are  not  to  take  every  possible  precaution  to  pre- 
vent injury;  for  that  would  be  inconsistent  with  the  cheapness 
and  speed  which  are  among  the  chief  objects  of  railway  trav- 
eling. But  their  care  is  to  be  exercised  in  relation  to  such  mat- 
ters and  in  such  ways  as  are  appropriate  to  the  business  they 
have  undertaken,  to  afford  proper  and  reasonable  securities 
against  danger;  and  it  is  only  in  regard  to  these,  from  the  im- 
portance of  the  interests  involved,  that  they  are  held  to  a  pro- 
portionate, that  is,  to  the  utmost  care,  and  diligence. 

Exceptions  overruled. 


524 


MAGOFFIN  V.  MISSOUEI  PACIFIC  EY.  CO.  §  132 

132.    MAGOFFIN  V.  MISSOURI  PACIFIC  RAILWAY  CO., 

102  Mo.  540;  15  8.  W,  E.  76;  22  Am.  St.  B.  798.     1890. 

Sherwood,  P.  J.  Action  for  five  thousand  dollars  damages 
for  the  death  of  plaintiff's  husband,  caused  by  a  collision  of  two 
of  the  trains  of  the  defendant. 

The  cause  was  tried  on  this  stipuation:  ''1.  Elijah  H.  Ma- 
goffin, the  husband  of  the  plaintiff',  was  killed  by  a  collision  be- 
tween two  trains  of  cars  of  the  defendant  on  the  line  of  the  de- 
fendant's railroad  between  Greenwood,  Jackson  County,  Mis- 
souri, and  Pleasant  Hill,  Cass  County,  Missouri,  on  the  morning 
of  November  27,  1886.  2.  At  the  time  of  the  death  of  said  Ma- 
goffin he  was  in  the  employ  of  the  United  States  of  America  as 
a  postal-clerk,  and  was  in  one  of  the  mail-cars  attached  to  one  of 
the  trains  of  the  defendant,  and  was  en  route  from  St.  Louis, 
Missouri,  to  Kansas  City,  Missouri ;  and  said  passenger  train  and 
a  certain  other  train  belonging  to  the  defendant,  and  running 
on  its  road,  collided  at  the  time  and  place  aforesaid,  and  in  the 
collision  the  said  Elijah  H.  Magoffin  was  instantly  killed.  The 
said  Elijah  H.  Magoffin  paid  no  fare  for  his  transportation,  but 
was  on  the  postal-car  as  an  employee  of  the  post-office  depart- 
ment of  the  government  of  the  United  States,  with  which  the 
defendant  had  a  contract  for  the  transportation  of  mails  and 
postal-clerfe. " 

To  further  sustain  the  issues  on  her  part  plaintiff  testified, 
substantially,  as  follows:  That  she  was  thirty-seven  years  old; 
had  been  married  to  deceased  fifteen  years;  had  four  children, 
the  oldest  fourteen,  and  the  youngest  two  years  of  age ;  that  her 
husband,  at  the  time  of  his  death,  was  employed  as  a  pos1?al-clerk 
by  the  United  States  government,  and  had  been  so  employed 
over  a  year,  and  received  a  salary  of  seventy-five  dollars  a  month ; 
that  her  husband  left  no  fortune,  and  all  they  had  to  de- 
pend upon  was  his  salary;  that  there  was  no  provision  left  her 
by  her  husband ;  that  they  had  a  few  hundred  dollars,  but  they 
had  to  depend  on  his  (her  husband's)  salary  for  a  living;  that 
her  husband  was  killed  November  27,  1886. 

This  was  all  the  testimony  offered.  Whereupon  the  plaintiff, 
by  leave  of  court,  dismissed  as  to  the  second  count  of  the  peti- 
tion. Whereupon,  at  the  instance  of  the  plaintiff,  the  court  in- 
structed the  jury  as  follows:  ''1.  The  court  instructs  the  jury 
that,  under  the  undisputed  evidence  in  the  cause,  the  plaintiff 
is  entitled  to  recover,  and  the  verdict  of  the  jury  should  be  in 
her  favor  for  five  thousand  dollars." 

525 


§§  132, 133  OF  CAERIEES  OF  PASSENGEES. 

The  court  refused  instructions  in  the  nature  of  a  demurrer 
to  the  evidence,  and  looking  to  a  recovery  of  a  less  sum  than  five 
thousand  dollars.  The  jury  found  for  the  plaintiff  in  that  sum ; 
hence  this  appeal.     The  answer  was  simply  a  general  denial. 

The  stipulation  already  set  forth  is  sufficient,  in  and  of  itself, 
to  shift  the  burden  of  proof  from  the  shoulders  of  the  plaintiff 
to  those  of  the  defendant,  since  the  facts  admitted  therein  made 
out  a  case  of  prima  facie  negligence  on  the  part  of  the  defendant ; 
and  this  being  unrebutted  and  undisputed  on  the  part  of  the  lat- 
ter, it  was  the  duty  of  the  court  to  direct  the  jury  to  find  a  ver- 
dict for  the  plaintiff ;  there  was  no  other  course  left  for  the  court 
to  pursue.  This  position  is  supported  both  by  reason  and  au- 
thority. And  it  is  equally  well  settled  that  the  deceased  hus- 
band occupied  as  advantageous  a  position  as  a  passenger,  if  he 
was  not  in  fact  one.  He  certainly  was  not  an  intruder;  he  was 
there  by  virture  of  a  contract  made  with  the  United  States  gov- 
ernment for  the  transportation  of  the  mails  and  postal-clerks; 
and  he  was  one  of  those  clerks.  The  fact  that  the  government 
had  contracted  for  his  transportation  along  with  the  mails,  to 
take  charge  thereof,  did  not  make  him  any  the  less  a  passenger 
nor  diminish  the  duty  which  the  defendant  owed  him  to  carry 
him  safely.     Privity  of  contract  is  nonessential  in  such  cases. 

The  case  of  Pennsylvania  R.  R.  Co  v.  Price,  96  Pa.  St.  256,  is 
not  at  all  analogous  to  the  present  one ;  for  there  a  special  statute 
controlled, — a  statute  which  excluded  postal-agents  from  the 
class  designated  as  passengers.  The  same  may  be  said  of  Price 
V.  Pennsylvania  R.  R.  Co.,  113  U.  S.  218  5  S.  Ct.  R.  427,  where 
the  same  statute  was  involved. 

Nor  can  it  be  doubted  that  plaintiff  was  entitled  to  a  recovery 
of  five  thousand  dollars  for  the  death  of  her  husband,  under  the 
provisions  of  section  2  of  the  damage  act:  Carroll  v.  Missouri 
Ry.  Co.,  88  Mo.  241,  57  Am.  R.  382 ;  Sullivan  v.  Missouri  Pacific 
Ry.  Co.,  97  Mo.  113,  10  S.  W.  R.  852. 
The  result  is,  that  we  affirm  the  judgment. 


133.    DOYLE  V.  FITCHBURG  RAILROAD  CO., 
162  Mass.  66;  37  N.  E.  E.  770;  44  Am.  St.  M.  335.    1894. 

Tort  for  damages  for  death  of  Cornelius  J.  Doyle,  who  was 
employed  by  defendant  railroad.  He  lived  in  Waltham  with 
his  father,  riding  back  and  forth  daily  on  a  monthly  ticket  which 
the  carrier  was  accustomed  to  furnish  to  its  employees  living 
outside  the  city,  and  which  contained  on  its  back  a  condition 

526 


DOYLE  V.  FITCHBURG  EAILEOAD  CO.  §  133 

that  the  free  ticket  is  accepted  on  the  express  agreement  that 
the  company  should  not  be  a  common  carrier  as  to  him,  or  liable 
under  any  circumstances,  whether  negligence  of  agents  or  other- 
wise, for  injury  to  the  person  or  property  of  the  passenger 
using  the  ticket.  Duties  of  deceased  to  defendant  were  entirely 
confined  to  the  day  between  7  a.  m.  and  6  p.  m.  At  10  p.  m., 
while  returning  from  Boston  on  business  of  his  own,  he  was 
killed  in  a  collision  due  to  the  gross  carelessness  of  the  engineer. 
To  a  refusal  of  the  court  to  rule  that  plaintiff  could  not  recover 
defendant  excepted. 

Morton,  J.  It  is  conceded  that  the  death  of  the  plaintiff's 
intestate  was  due  to  the  gross  negligence  of  an  engineer  in  the 
employ  of  the  defendant.  The  defense  rests  on  two  proposi- 
tions: 1.  That  the  plaintiff's  intestate  was  not  a  passenger, 
but  an  employee ;  2.  If  that  is  not  so,  that  the  defendant  is  not 
liable  by  reason  of  the  conditions  on  the  back  of  the  ticket. 

The  statute  is  as  follows:  "If  by  reason  of  the  negligence 
.  .  .  .  of  a  corporation  operating  a  railroad,  ....  or  of  the 
unfitness  or  gross  negligence  or  carelessness  of  its  servants,  .... 
while  engaged  in  its  business,  the  life  of  a  passenger,  or  of  a  per- 
son being  in  the  exercise  of  due  diligence  and  not  a  passenger, 
or  in  the  employment  of  such  corporation,  is  lost,  the  corpora- 
tion shall  be  punished,"  etc:  Pub  Stats.,  c.  112,  sec.  212.  We 
do  not  think  that  at  the  time  of  the  injury  the  plaintiff's  in- 
testate was  "in  the  employment"  of  the  defendant  within  the 
meaning  of  the  statute.  The  defendant  was  not  transporting 
him  to  or  from  the  place  of  his  daily  labor,  pursuant  to  the  ar- 
rangement which  existed  between  them.  It  had  no  control  or 
authority  over  him.  He  was  not  traveling  on  any  service  for 
it.  His  time  was  his  own,  and  the  defendant  was  not  paying  him 
for  it,  and  he  could  use  it  as  he  saw  fit,  and  he  was  passing  over 
the  defendant's  road  entirely  for  his  own  business  or  pleasure. 
So  long  as  he  was  working  from  day  to  day  for  the  defendant, 
it  might  be  said,  in  a  popular  sense,  that  he  was  in  its  employ- 
ment. But  we  do  not  think  that  is  the  sense  in  which  the  words 
are  used  in  the  statute.  Otherwise,  if  at  any  time,  under  any 
circumstances,  passing  over  the  railroad  on  a  highway  crossing 
on  Sunday,  for  instance,  on  an  errand  to  get  a  doctor  for  his 
father  or  a  friend,  he  was  injured  by  the  gross  negligence  of  the 
defendant's  servants  while  engaged  in  its  business,  he  would  have 
no  right  of  recovery.  Nothing  but  the  plainest  language  would 
warrant  such  a  construction. 

Was  he  a  passenger?     This  question  is  a  more  difficult  one, 
and  there  is  force  in  the  argument  that  to  hold  that  he  was  a 

527 


§  133  OF  CARKIEKS  OF  PASSENGEES. 

passenger  would  subject  the  defendant  to  a  higher  degree  of 
care  toward  him  when  traveling  on  its  road  on  his  own  pleas- 
ure than  when  traveling  pursuant  to  some  purpose  con- 
nected with  his  service  as  an  employee.  Nevertheless,  we  think 
that  he  must  be  regarded  as  having  been  a  passenger.  It  is 
clear  that  a  person  may  at  one  time  be  an  employee  when  passing 
over  a  railroad,  and  at  another  time  in  passing  over  the  same 
road  be  a  passenger,  though  continuing  all  the  while,  in  a  pop- 
ular sense,  in  the  employment  of  the  railroad  company.  The 
ticket  on  which  the  plaintiff's  intestate  was  riding  was  not  a  mere 
gratuity.  It  furnished  part  of  the  consideration  by  which  he 
was  induced  to  enter  the  employment  of  the  defendant.  A 
ticket  was  given  to  him  each  month,  and  it  contained  more  rides 
than  were  necessary  in  traveling  to  and  from  his  work.  It  is 
expressly  conceded  that  persons  holding  these  tickets  could  use 
them  for  their  own  private  interest  or  pleasure;  and  we  think 
the  result  must  be  that  the  plaintiff's  intestate  held  toward  the 
defendant  the  relation  of  a  passenger  at  the  time  when  he  was 
injured.  The  cases  to  which  the  defendant  has  referred  us  are 
distinguishable  from  this.  Those  in  this  state  were  where  the 
plaintiff  was  being  transported  in  immediate  connection  with  his 
employment :  Gillshannon  v.  Stony  Brook  R.  H.  Corp.,  10  Cush. 
228 ;  Seaver  v.  Boston  &  Maine  R.  R.  Co.,  14  Gray,  466 ;  Oilman 
V.  Eastern  R.  R.  Corp.,  10  Allen  233,  87  Am.  Dec.  235;  O'Brien 
v.  Boston  &  Albany  R.  R.  Co.,  138  Mass.  387,  52  Am.  Rep. 
279.  In  the  cases  in  other  states  the  circumstances  under  which 
the  injuries  occurred  were  such  that  the  plaintiff  could  at  the 
time  fairly  be  said  to  be  in  the  employ  of  the  defendant:  Rus- 
sell V.  Hudson  River  R.  R.  Co.,  17  N.  Y.  134;  Vick  v.  N.  Y.  Cent, 
etc.  R.  R.  Co.,  95  N.  Y.  267 ,  47  Am.  Rep.  36 ;  Abend  v.  Terre 
Haute  etc.  Ry.  Co.,  17  Am.  &  Eng.  R.  R.  Cas.  614;  Interna- 
tional etc.  Ry.  Co.  v.  Ryan,  82  Tex.  565,  18  S.  W.  R.  219; 
Kansas  City  etc.  R.  R.  Co.  v.  Phillips,  98  Ala.  159,  13  So.  R.  65 ; 
Parkinson  Sugar  Co.  v.  Riley,  50  Kan.  401,  31  Pac.  1090,  34 
Am.  St.  R.  123 ;  Evansville  etc.  R.  R.  Co.  v.  Maddux,  134  Ind. 
571 ,  33  N.  E.  R.  345 ;  Manville  v.  Cleveland  etc.  R.  R.  Co.,  11 
Ohio  St.  417;  O'Connell  v.  Baltimore  etc.  R.  R.  Co.,  20  Md.  212; 
83  Am.  Dee.  549 ;  Hutchinson  v.  York  etc.  Ry.  Co.,  5  Ex.  343 ; 
Tunney  v.  Midland  Ry.  Co.,  L.  R.  1  Com.  P.  291. 

In  considering  the  contract  on  the  back  of  the  ticket,  the  fact 
that  the  statute  is  a  penal  one  must  also  be  borne  in  mind.  The 
word  "damages"  is  not  used  in  a  strictly  legal  sense:  Sackett 
V.  Ruder,  152  Mass.  397,  403.  25  N.  E.  R.  736.  Damages  are  to  be 
assessed  not  less  and  not  more  than  a  certain  amount,  and  with 
reference  to  the  degree  of  culpability  of  the  corporation,  its  ser- 

528 


WILLIAMS  V.  ORE.  SHORT  LINE  R.  R.  CO.     §  §  133,  134 

vants,  or  agents.  Originally  the  remedy  was  by  indictment. 
Afterward  it  was  extended  to  an  action  of  tort :  Stats.  1871,  c. 
381,  sec.  49 ;  Stats.  1874,  c.  372,  sec.  163 ;  Stats.  1881,  c.  199,  sees. 
1,  6.  But  only  one  of  the  remedies  can  be  pursued  by  the  ex- 
ecutor or  administrator.  And  whether  the  amount  is  recovered 
by  indictment  or  in  an  action  of  tort,  it  goes  in  either  case  to 
the  widow  and  children  and  next  of  kin,  and  the  executor  or  ad- 
ministrator has  no  interest  in  it.  It  is  in  substance  a  penalty 
given  to  the  widow  and  children  and  next  of  kin,  instead  of  to 
the  commonwealth,  and  as  such  the  intestate  could  not  release 
the  defendant  from  liability  for  it:  Commonwealth  v.  Vermont 
etc.  R.  R.  Co.,  108  Mass.  7,  12 ;  11  Am.  Rep.  311 ;  Commonwealth 
v.  Boston  etc.  R.  R.  Corp.,  134  Mass.  211  ;Littlejohn  v.  Fitchburg 
R.  R.  Co.,  148  Mass.  478,  482,  20  N.  E.  R.  103.  Save  as  a  matter 
of  convenience,  the  proceedings  properly  enough  might  be  insti- 
tuted by  the  widow  and  children  or  next  of  kin,  if  the  statute 
permitted  it,  as  is  done  in  certain  instances  under  the  employers' 
liability  act:  Stats.  1887,  c.  270,  sec.  2.  We  have  not  found  it 
necessary  to  consider  whether  a  release  of  damages  for  causing 
the  death  of  a  human  being  is  or  is  not  justified  by  public  pol- 
icy, though  a  statute  has  been  enacted  recently  which  seems  to 
authorize  such  a  release  by  express  messengers:  Stats.  1894,  c. 
469,  sec.  2.  Upon  that,  hoM^ever,  we  express  no  opinion.  The 
result  is  that  we  are  of  opinion  that  the  exceptions  must  be  over- 
ruled, and  it  is  so  ordered. 


134.     WILLIAMS  V.  OREGON  SHORT  LINE  RAILROAD 

CO., 

18  Utah  210;  54  Pac.  R.  991;  72  Am.  St.  B.  777.     1898. 

Action  for  damages  for  personal  injuries  suffered  by  a  passen- 
ger because  of  the  negligent  running  of  a  train.  Judgment  for 
plaintiff. 

Miner,  J.     (Omitting  matters  of  pleading  and  practice). 

3.  The  plaintiff  gave  testimony  tending  to  show  that  in  April, 
1897,  he  applied  to  Mr.  Boies,  defendant's  train  master  at  Poea- 
tello,  Idaho,  for  employment.  Boies  agreed  to  give  him  employ- 
ment as  brakeman  if  he  would  go  to  Glenn's  Ferry,  Idaho.  ThQ 
plaintiff  agreed  to  go  to  Glenn's  Ferry,  and  Boies  gave  him  a 
pass  from  Pocatello  to  that  place  and  return.  Plaintiff  did  not 
ask  for  the  pass.  The  pass  had  an  indorsement  on  the  back  of 
3^  529 


§  134  OF  CAEKIEKS  OF  PASSENGEES. 

it.  Plaintiff  could  not  say  that  lie  read  it.  It  was  usual,  when 
a  man  was  employed  on  a  railroad  and  went  to  a  particular  place, 
to  give  him  a  pass  to  such  place.  Plaintiff's  employment  wag 
to  begin  when  he  was  put  to  work,  and  he  was  to  begin  work 
when  he  arrived  at  Glenn's  Ferry  and  when  placed  at  work. 
His  time  was  not  going  on  when  the  accident  occurred.  The 
understanding  was  that  the  plaintiff's  time  would  begin  when 
he  was  actually  put  to  work.  While  traveling  on  a  free  pass  in 
pursuance  of  the  agreement,  on  defendant's  railroad  to  the  place 
of  employment,  and  when  near  Malad  bridge  in  Idaho,  and  be- 
fore reaching  Glenn's  Ferry,  the  train  was  wrecked,  and  the 
plaintiff  was  injured. 

The  signature  of  the  plaintiff  on  the  back  of  the  pass  was 
admitted.  The  pass  was  received  in  evidence.  But  the  follow- 
ing conditions  indorsed  on  the  back  of  the  pass  were  offered  in 
evidence,  and  on  objection,  were  refused  by  the  court: 

"This  ticket  is  not  transferable,  and  it  is  void  if  presented  by 
any  other  than  the  person  named,  or  if  any  alteration,  addition, 
or  erasure  is  made  upon  it.  The  person  accepting  and  using  this 
ticket,  in  consideration  of  receiving  the  same,  voluntarily  as- 
sumes all  risk  of  accidents  and  damages,  and  expressly  agrees 
that  the  Oregon  Short  Line  Railroad  Company  shall  not  be  re- 
garded as  a  common  carrier,  nor  as  liable  to  him  for  an  injury 
to  his  person,  or  any  loss  or  damage  to  his  baggage  which  may 
occur  while  using  this  ticket,  whether  caused  by  the  negligence 
of  the  company's  agents  or  otherwise.  Not  good  unless  signed 
in  ink  by  the  person  named  on  the  pass. 

"J.  A.   WILLIAMS." 

Among  other  things,  the  court  instructed  the  jury  as  fol- 
lows: "I  charge  you  that  it  was  the  duty  of  the  defendant  to 
use  the  utmost  care  and  skill  which  prudent  men  are  ordinarily 
accustomed  to  use  in  keeping  its  roadbeds,  rails,  and  switch  in 
proper  repair,  and  adequate  for  the  purpose  for  which  they  are 
used;  and  if  you  believe  from  the  evidence  that  such  care  was 
not  exercised  upon  the  part  of  the  defendant,  by  reason  of 
which  the  train  upon  which  the  plaintiff  was  riding  became  de- 
railed, which  caused  his  injury,  then  I  charge  you  that  you 
should  find  a  verdict  in  favor  of  the  plaintiff." 

The  appellant  contends  that  the  court  erred  in  refusing  to 
admit  in  evidence  the  conditions  on  the  back  of  the  pass,  and 
in  giving  the  jury  the  above  instruction,  requiring  the  greatest 
care,  as  in  case  of  a  passenger,  and  claims  that  the  plaintiff 
was  an  employee  and  not  a  passenger,  and  therefore  the  de- 
fendant only  owed  him  the  exercise  of  ordinary  care  at  the 

530 


WILLIAMS  V.  OEE.  SHOET  LINE  R.  E.  CO.  §  134 

time  of  the  injury,  and  that  the  instruction  is  incorrect,  except 
when  the  relationship  of  passenger  and  carrier  exists. 

The  testimony  shows  that  the  plaintiff  had  agreed  to  enter 
the  employment  of  the  defendant  as  a  brakeman  at  such  time 
as  he  could  reach  Glenn's  Ferry,  Idaho.  Free  transportation, 
with  the  conditions  attached  thereto,  was  given  the  plaintiff  by 
the  defendant,  without  request,  for  the  purpose  of  enabling  the 
plaintiff  to  reach  the  agreed  place,  where  the  employment  would 
commence.  Plaintiff's  compensation  was  not  to  commence  until 
he  reached  Glenn's  Ferry,  and  was  there  given  employment  on 
the  order  given  by  the  yard  master.  Therefore,  the  relation  of 
employee  and  employer,  master  and  servant,  had  not  yet  at- 
tached at  the  time  of  the  injury  which  occurred  at  Malad 
bridge.  The  intention  was  to  employ  and  be  employed,  and 
the  pass  was  given  with  that  expectation.  The  transportation 
of  plaintiff  to  Glenn's  Ferry  was  not  a  matter  of  charity  or 
gratuity  on  the  part  of  the  defendant.  The  free  pass  was  given 
by  virtue  of  an  agreement  by  which  the  mutual  interests  of  the 
parties  were  considered.  The  plaintiff  desired  employment  at 
Glenn's  Ferry.  The  defendant  desired  plaintiffs'  services  at 
Glenn's  Ferry,  and  agreed  to  transport  him  there  free  of  charge, 
if  he  would  go  there  and  enter  its  employment  after  he  arrived 
there.  The  plaintiff  agreed  to  this  arrangement.  The  transac- 
tion was  a  mutual  benefit  to  both  of  the  parties,  and  the  pass 
did  not  alter  it.  This  was  a  case  where  the  defendant,  as  a 
common  carrier  of  passengers,  could  not  stipulate  for  the  ex- 
emption from  liability  on  account  of  the  negligence  of  his  ser- 
vants. The  pass  was  simply  the  evidence  of  a  right  to  be  trans- 
ferred over  the  road,  but  not  of  a  contract  by  which  the  plain- 
tiff was  to  assume,  all  the  risks,  and  it  would  not  have  been 
valid  if  it  had  been.  Under  these  circumstances  it  was  not 
important  what  the  back  of  the  pass  contained.  Plaintiff's  ac- 
ceptance of  the  pass  under  the  circumstances  and  conditions 
would  not  prevent  a  recovery.  There  was  a  valid  consideration 
for  the  pass;  the  plaintiff  was  a  passenger  and  entitled  to  that 
degree  of  care  covered  by  the  instruction.  Being  such,  the 
defendant  had  no  right  to  stipulate  for  the  immunity  expressed 
on  the  back  of  the  pass :  Railway  Co.  v.  Stevens,  95  U.  S.  655 ; 
Railway  Co.  v.  Lockwood,  17  Wall.  357;  3  Wood  on  Railroads, 
1696 ;  2  Wood  on  Railroads,  1203 ;  Doyle  v.  Fitchburg  R.  R.  166 
Mass.  492,  44  N.  E.  R.  611,  55  Am.  St.  R.  417 ;  Denver  etc.  Co. 
V.  Dwyer,  20  Colo.  132,  36  Pac.  R.  1106 ;  Flint  etc.  R.  R.  Co.  v. 
Weir,  37  Mich.  Ill,  26  Am.  R.  499;  State  v.  Western  etc.  R.  R. 
Co..  fiR  Md.  433;  Gillenwater  v.  Madison  etc.  Ry.  Co.,  5  Ind. 
J39,  61  Am.  D.  lOi. 

531 


§  134  OF  CAERIERS  OF  PASSENGEES. 

It  is  argued  that  even  if  the  ticket  was  a  free  pass  gratui- 
tously possessed  with  the  conditions  printed  thereon,  still  the 
defendant  could  not  escape  liability  for  its  negligence.  We  be- 
lieve the  plaintiff  is  correct  in  this  contention.  It  is  held  to  be 
the  general  rule  in  most  of  the  states  that  in  the  case  of  a  per- 
son riding  on  a  free  pass  the  carrier  is  under  the  same  obliga- 
tions, as  to  care  and  vigilance,  as  he  is  to  a  passenger  for  hire; 
and  as  to  a  passenger  to  whom  a  pass  is  given,  based  upon  any 
consideration,  he  cannot  absolve  himself  from  liability  for  in- 
juries resulting  from  gross  negligence,  by  any  notice  to  that 
effect  printed  upon  the  pass,  as  such  conditions  are  held  to  be 
against  public  policy  and  void;  2  Wood  on  Railroads,  1208;  3 
Wood  on  Railroads,  1696;  Rose  v.  Des  Moines  etc.  Ry.  Co.,  39 
Iowa,  246 ;  Railway  Co.  v.  Wynn,  88  Tenn.  330 ;  Annas  v.  Mil- 
waukee etc.  R.  R.  Co.,  67  Wis.  46,  30  N.  W.  R.  282,  58  Am.  R. 
848 ;  Railway  Co.  v.  Lockwood,  17  Wall.  357 ;  Gulf  etc.  Ry.  Co.  v. 
McGown,  65  Tex.  640;  Shearman  and  Redfield  on  Negligence, 
sec.  492 ;  State  v.  Western  etc.  R.  R.  Co.,  63  Md.  433 ;  Gillenwater 
V.  Madison  etc.  Ry.  Co.,  5  Ind.  339,  61  Am.  D.  101;  O'Donnell 
V.  Allegheny  Ry.  Co.,  50  Pa.  St.  490;  Hutchinson  on  Carriers, 
sec.  566. 

In  Saunders  v.  Southern  Pacific  R.  R.  Co.,  13  Utah  284,  44 
Pac.  R.  932,  this  court  held,  with  reference  to  a  drover's  pass, 
where  like  conditions  were  attached,  that  the  holder  of  a  pass 
was  a  passenger,  and  entitled  to  protection  as  a  passenger  on  such 
train,  regardless  of  any  clause  in  the  contract  exempting  the 
carrier  from  liability  from  negligence  of  its  servants,  because 
such  clause  is  against  the  policy  of  the  law  and  therefore  void. 
That  when  the  passenger  was  received  the  company  was  liable 
for  any  injury  which  might  befall  him  through  the  negligence 
of  its  servants,  the  same  as  though  he  actually  paid  his  fare  before 
entering  the  cars,  and  as  to  him  the  company  was  bound  to  the 
exercise  of  the  same  care:  Hutchinson  on  Carriers,  sec.  550b; 
Railroad  Co.  v.  Lockwood,  17  Wall.  357. 

Speaking  of  the  duties  of  common  carriers,  in  Railroad  Co. 
V.  Lockwood,  17  Wall.  357,  the  court  said:  (For  this  quotation 
see  ante  p. .) 

From  a  review  of  the  great  weight  of  authority  in  this  coun- 
try, the  general  rule,  with  reference  to  the  liability  of  common 
carriers  is  held  to  be:  1.  "That  a  common  carrier  cannot  stipu- 
late for  exemption  from  responsibility,  when  such  exemption  is 
not  just  and  reasonable  in  the  eye  of  the  law";  2.  ''That  it  is 
not  just  and  reasonable  in  the  eye  of  the  law  for  the  common 
carrier  to  stipulate  for  exemption  from  responsibility  for  the 
negligence  of  the  master  or  his  servants";  3.  "That  these  rules 

532 


STEAMBOAT   NEW   WORLD    v.   KING.       §§  134,  135 

apply  both  to  carriers  of  goods  and  carriers  of  passengers,  and 
with  special  force  to  the  latter";  4.  "That  where  a  person 
agrees  with  a  carrier  to  enter  in  its  employment  at  a  certain 
place  in  the  future,  and  in  consideration  of  the  mutual  inter- 
ests of  both  a  free  pass  is  given  to  the  place  of  employment  with 
conditions  on  the  back  rendering  the  carrier  nonliable  for  in- 
juries caused  by  its  negligence,  or  that  of  its  agents,  and  in 
traveling  on  the  defendant's  road  to  the  place  of  employment 
the  person  is  injured  by  the  negligence  of  the  carrier's  agents, 
such  person  must  be  regarded  as  a  passenger  for  hire  and  not 
an  employee,  and  the  carrier  is  liable  for  damages  caused  the 
passenger  by  its  negligence."  The  conditions  printed  on  the 
back  of  the  pass  were  properly  rejected.  The  instructions  were 
not  subject  to  the  objection  made. 

We  find  no  reversible  error  in  the  record.  The  judgment  of 
the  district  court  is  affirmed,  with  costs. 

Zane,  C.  J.,  and  Bartch,  J.,  concur. 


135.     STEAMBOAT  NEW  WORLD  V.  KING, 
16  Howard  (U.  S.)  469.     1853. 

Mr.  Justice  Curtis  delivered  the  opinion  of  the  court. 

This  is  an  appeal  from  a  decree  of  the  District  Court  of  the 
United  States  for  the  Northern  District  of  California,  sitting  in 
admiralty.  The  libel  alleges  that  the  appellee  was  a  passenger 
on  board  the  steamer  on  a  voyage  from  Sacramento  to  San  Fran- 
cisco, in  June,  1851,  and  that,  while  navigating  within  the  ebb 
and  flow  of  the  tide,  a  boiler  flue  was  exploded  through  negli- 
gence, and  the  appellee  grievously  scalded  by  the  steam  and  hot 
water. 

The  answer  admits  that  an  explosion  occurred  at  the  time  and 
place  alleged  in  the  libel,  and  that  the  appellee  was  on  board  and 
was  injured  thereby,  but  denies  that  he  was  a  passenger  for  hire, 
or  that  the  explosion  was  the  consequence  of  negligence. 

The  evidence  shows  that  it  is  customary  for  the  masters  of 
steamboats  to  permit  persons  whose  usual  employment  is  on 
board  of  such  boats,  to  go  from  place  to  place  free  of  charge ;  that 
the  appellee  had  formerly  been  employed  as  a  waiter  on  board 
this  boat ;  and  just  before  she  sailed  from  Sacramento  he  applied 
to  the  master  for  a  free  passage  to  San  Francisco,  which  was 
granted  to  him,  and  he  came  on  board. 

It  has  been  urged  that  the  master  had  no  power  to  impose 

533 


§  135  OF  CAEBIEES  OF  PASSENGEES. 

any  obligation  on  the  steamboat  by  receiving  a  passenger  without 
compensation. 

But  it  cannot  be  necessary  that  the  compensation  should  be 
in  money,  or  that  it  should  accrue  directly  to  the  owners  of  the 
boat.  If  the  master  acted  under  an  authority  usually  exercised 
by  masters  of  steamboats,  if  such  exercise  of  authority  must  be 
presumed  to  be  known  to  and  acquiesced  in  by  the  owners,  and 
the  practice  is,  even  indirectly,  beneficial  to  them,  it  must  be 
considered  to  have  been  a  lawful  exercise  of  an  authority  incident 
to  his  command. 

It  is  proved  that  the  custom  thus  to  receive  steamboat  men  is 
general.  The  owners  must  therefore  be  taken  to  have  known 
it,  and  to  have  acquiesced  in  it,  inasmuch  as  they  did  not  forbid 
the  master  to  conform  to  it.  And  the  fair  presumption  is,  that 
the  custom  is  one  beneficial  to  themselves.  Any  privilege  gener- 
ally accorded  to  persons  in  a  particular  employment,  tends  to 
render  that  employment  more  desirable,  and  of  course  to  enable 
the  employer  more  easily  and  cheaply  to  obtain  men  to  supply 
his  wants. 

It  is  true  the  master  of  a  steamboat,  like  other  agents,  has 
not  an  unlimited  authority.  He  is  the  agent  of  the  owner  to  do 
only  what  is  usually  done  in  the  particular  employment  in  which 
he  is  engaged.  Such  is  the  general  result  of  the  authorities. 
Smith  on  Mer.  Law.  559 ;  Grant  v.  Norway,  10  Com.  B.  688, 
2  Eng.  L.  and  Eq.  337;  Pope  v.  Nickerson,  3  Story,  475;  Citi- 
zens' Bank  v.  Nantucket  Steamboat  Co.,  2  Story,  32.  But  dif- 
ferent employments  may  and  do  have  different  usages,  and  con- 
sequently confer  on  the  master  different  powers.  And  when,  as 
in  this  case,  a  usage  appears  to  be  general,  not  unreasonable  in 
itself,  and  indirectly  beneficial  to  the  owner,  we  are  of  opinion 
the  master  has  power  to  act  under  it  and  bind  the  owner. 

The  appellee  must  be  deemed  to  have  been  lawfully  on  board 
under  this  general  custom. 

Wliether  precisely  the  same  obligations  in  all  respects  on  the 
part  of  the  master  and  owners  and  their  boat,  existed  in  his  case, 
as  in  that  of  an  ordinary  passenger  paying  fare,  we  do  not  find 
it  necessary  to  determine.  In  the  Philadelphia  and  Reading  Rail- 
road Company  v.  Derby,  14  How.  486,  which  was  a  case  of 
gratuitous  carriage  of  a  passenger  on  a  railroad,  this  court  said : 
"When  carriers  undertake  to  convey  persons  by  the  powerful 
but  dangerous  agency  of  steam,  public  policy  and  safety  require 
that  they  should  be  held  to  the  greatest  possible  care  and  dili- 
gence. And  whether  the  consideration  for  such  transportation 
be  pecuniary  or  otherwise,  the  personal  safety  of  passengers 
should  not  be  left  to  the  sport  of  chance  or  the  negligence  of 

534 


STEAMBOAT    NEW    WORLD    v.    KING.  §  135 

careless  agents.  Any  negligence,  in  such  cases,  may  well  deserve 
the  epithet  of  gross." 

We  desire  to  be  understood  to  reaffirm  that  doctrine,  as  rest- 
ing, not  only  on  public  policy,  but  on  sound  principles  of  law. 

The  theory  that  there  are  three  degrees  of  negligence,  described 
by  the  terms  slight,  ordinary,  and  gross,  has  been  introduced 
into  the  common  law  from  some  of  the  commentators  on  the 
Roman  law.  It  may  be  doubted  if  these  terms  can  be  usefully 
applied  in  practice.  Their  meaning  is  not  fixed,  or  capable  of 
being  so.  One  degree,  thus  described,  not  only  may  be  con- 
founded with  another,  but  it  is  quite  impracticable  exactly  to  dis- 
tinguish them.  Their  signification  necessarily  varies  according 
to  circumstances,  to  whose  influence  the  courts  have  been  forced 
to  yield,  until  there  are  so  many  real  exceptions  that  the  rules 
themselves  can  scarcely  be  said  to  have  a  general  operation.  In 
Storer  v.  Gowen,  18  Maine  177,  the  Supreme  Court  of  Maine 
say:  "How  much  care  will,  in  a  given  case,  relieve  a  party  from 
the  imputation  of  gross  negligence,  or  what  oanission  will  amount 
to  the  charge,  is  necessarily  a  question  of  fact,  depending  on  a 
great  variety  of  circumstances  which  the  law  cannot  exactly  de- 
fine." Mr.  Justice  Story  (Bailments,  §  11),  says:  "Indeed,  what 
is  common  or  ordinary  diligence  is  more  a  matter  of  fact  than 
of  law."  If  the  law  furnishes  no  definition  of  the  terms  gross 
negligence  or  ordinary  negligence,  wdiich  can  be  applied  in  prac- 
tice, but  leaves  it  to  the  jury  to  determine  in  each  case,  what  the 
duty  was,  and  what  omissions  amount  to  a  breach  of  it,  it  would 
seem  that  imperfect  and  confessedly  unsuccessful  attempts  to  de- 
fine that  duty,  had  better  be  abandoned. 

Recently  the  judges  of  several  courts  have  expressed  their  dis- 
approbation of  these  attempts  to  fix  the  degrees  of  diligence  by 
legal  definitions,  and  have  complained  of  the  impracticability  of 
applying  them.  Wilson  v.  Brett,  11  Meeson  &  Wels.  113 ;  Wylde 
V.  Pickford,  8  lb.  443,  461,  462 ;  Hinton  v.  Dibbin,  2  Q.  B.  646, 
651.  It  must  be  confessed  that  the  difficulty  in  defining  gross 
negligence,  which  is  apparent  in  perusing  such  cases  as  Tracy 
et  al.  V.  Wood,  3  Mason,  132,  and  Foster  v.  The  Essex  Bank,  17 
Mass.  479,  9  Am.  D.  168,  would  alone  be  sufficient  to  justify 
these  complaints.  It  may  be  added  that  some  of  the  ablest  com- 
mentators on  the  Roman  law,  and  on  the  civil  code  of  France, 
have  wholly  repudiated  this  theory  of  three  degrees  of  diligence, 
as  unfounded  in  principles  of  natural  justice,  useless  in  practice, 
and  presenting  inextricable  embarrassments  and  difficulties.  See 
Toullier's  Droit  Civil,  6th  vol.  p.  239,  &c.;  11th  vol.  p.  203,  &c. 
Makeldey,  Man.  Du  Droit  Romain,  191,  &c. 

But  whether  this  term,  gross  negligence,  be  used  or  not,  this 

535 


§  135  OF  CAERIEES  OF  PASSENGERS. 

particular  case  is  one  of  gross  negligence,  according  to  the  tests 
which  have  been  applied  to  such  a  case. 

In  the  first  place,  it  is  settled,  that  "the  bailee  must  proportion 
his  care  to  the  injury  or  loss  which  is  likely  to  be  sustained  by  any 
improvidence  on  his  part. ' '   Story  on  Bailments,  §  15. 

It  is  also  settled  that  if  the  occupation  or  employment  be  one 
requiring  skill,  the  failure  to  exert  that  needful  skill,  either  be- 
cause it  is  not  possessed,  or  from  inattention,  is  gross  negligence. 
Thus  Heath,  J.,  in  Shields  v,  Blackburne,  1  H.  Bl.  161,  says :  "If 
a  man  applies  to  a  surgeon  to  attend  him  in  a  disorder  for  a  re- 
ward, and  the  surgeon  treats  him  improperly,  there  is  gross 
negligence,  and  the  surgeon  is  liable  to  an  action;  the  surgeon 
would  also  be  liable  for  such  negligence  if  he  undertook  gratis  to 
attend  a  sick  person,  because  his  situation  implies  skill  in  surg- 
ery. ' '  And  Lord  Loughborough  declares  that  an  omission  to  use 
skill  is  gross  negligence.  ]\Ir.  Justice  Story,  although  he  contro- 
verts the  doctrine  of  Pothier,  that  any  negligence  renders  a  gra- 
tuitous bailee  responsible  for  the  loss  occasioned  by  his  fault,  and 
also  the  distinction  made  by  Sir  William  Jones,  between  an  un- 
dertaking to  carry  and  an  undertaking  to  do  work,  yet  admits 
that  the  responsibility  exists  when  there  is  a  want  of  due  skill,  or 
an  omission  to  exercise  it.  And  the  same  may  be  said  of  Mr.  Jus- 
tice Porter,  in  Percy  v.  Millaudon,  8  Martin  (N.  S.)  75.  This 
qualification  of  the  rule  is  also  recognized  in  Stanton  v.  Bell,  2 
Hawks  (N.  C.)  145,  11  Am.  D.  744. 

That  the  proper  management  of  the  boilers  and  machinery  of 
a  steamboat  requires  skill,  must  be  admitted.  Indeed,  by  the  act 
of  Congress  of  August  30,  1852,  great  and  unusual  precautions 
are  taken  to  exclude  from  this  employment  all  persons  who  do 
not  possess  it.  That  an  omission  to  exercise  this  skill  vigilantly 
and  faithfully,  endangers,  to  a  frightful  extent,  the  lives  and 
limbs  of  great  numbers  of  human  beings,  the  awful  destruction 
of  life  in  our  country  by  explosions  of  steam  boilers  but  too  pain- 
fully proves.  "We  do  not  hesitate,  therefore,  to  declare  that  negli- 
gence in  the  care  or  management  of  such  boilers,  for  which  skill 
is  necessary,  the  probable  consequence  of  which  negligence  is 
injury  and  loss  of  the  most  disastrous  kind,  is  to  be  deemed  culpa- 
ble negligence,  rendering  the  owners  and  the  boat  liable  for 
damages,  even  in  case  of  the  gratuitous  carriage  of  a  passenger. 
Indeed,  as  to  explosion  of  boilers  and  flues,  or  other  dangerous 
escape  of  steam  on  board  steamboats,  Congress  has,  in  clear  terms, 
excluded  all  such  cases  from  the  operation  of  a  rule  requiring 
gross  negligence  to  be  proved  to  lay  the  foundation  of  an  action 
for  damages  to  person  or  property. 

The  thirteenth  section  of  the  act  of  July  7,  1838  (5  Stat,  at 

536 


STEAMBOAT    NEW   WORLD    v.   KING.  §  135 

Large,  306),  provides:  "That  in  all  suits  and  actions  against 
proprietors  of  steamboats  for  injury  arising  to  persons  or  prop- 
erty from  the  bursting  of  the  boiler  of  any  steamboat,  or  the  col- 
lapse of  a  flue,  or  other  dangerous  escape  of  steam,  the  fact  of 
such  bursting,  collapse  or  injurious  escape  of  steam  shall  be  taken 
as  full  prima  facie  evidence  sufficient  to  charge  the  defendant,  or 
those  in  his  employment,  with  negligence,  until  he  shall  show 
that  no  negligence  has  been  committed  by  him  or  those  in  his 
employment. ' ' 

This  case  falls  within  this  section;  and  it  is  therefore  incum- 
bent on  the  claimants  to  prove  that  no  negligence  has  been  com- 
mitted by  those  in  their  employment. 

Have  they  proved  this  ?  It  appears  that  the  disaster  happened 
a  short  distance  above  Benicia;  that  another  steamer  called  the 
Wilson  G.  Hunt,  was  then  about  a  quarter  of  a  mile  astern  of 
the  New  World,  and  that  the  boat  first  arriving  at  Benicia  got 
from  twenty-five  to  fifty  passengers.  The  pilot  of  the  Hunt  says 
he  hardly  knows  whether  the  boats  were  racing,  but  both  were 
doing  their  best,  and  this  is  confirmed  by  the  assistant  pilot,  who 
says  the  boats  were  always  supposed  to  come  down  as  fast  as  pos- 
sible ;  the  first  boat  at  Benicia  gets  from  twenty-five  to  fifty  pas- 
sengers. And  he  adds  that  at  a  particular  place  called  "the 
slough"  the  Hunt  attempted  to  pass  the  New  World.  Fay,  a  pas- 
senger on  board  the  New  World  swears,  that  on  two  occasions, 
before  reaching  "the  slough"  the  Hunt  attempted  to  pass  the 
New  World  and  failed;  that  to  his  knowledge  these  boats  had 
been  in  the  habit  of  contending  for  the  mastery,  and  on  this  occa- 
sion both  were  doing  their  best.  The  fact  that  the  Hunt  at- 
tempted to  pass  the  New  World  in  "the  slough"  is  denied  by 
two  of  the  respondents'  witnesses,  but  they  do  not  meet  the  tes- 
timony of  Fay,  as  to  the  two  previous  attempts.  Haskell,  another 
passenger,  says,  "about  ten  minutes  before  the  explosion  I  was 
standing  looking  at  the  engine,  we  saw  the  engineer  was  evi- 
dently excited,  by  his  running  to  a  little  window  to  look  out 
at  the  boat  behind.  He  repeated  this  ten  or  fifteen  times  in  a  very 
short  time."  The  master,  clerk,  engineer,  assistant  engineer, 
pilot,  one  fireman,  and  the  steward  of  the  New  World,  were  ex- 
amined on  behalf  of  the  claimants.  No  one  of  them,  save  the 
pilot,  denies  the  fact  that  the  boats  were  racing.  With  the  excep- 
tion of  the  pilot  and  the  engineer,  they  are  wholly  silent  on  the 
subject.  The  pilot  says  they  were  not  racing.  The  engineer  says : 
"We  have  had  some  little  strife  between  us  and  the  Hunt  as  to 
who  should  get  to  Benicia  first.  There  was  an  agreement  made 
that  we  should  go  first.  I  think  it  was  a  trip  or  two  before. "  Con- 
sidering that  the  master  says  nothing  of  any  such  agreement, 

537 


§§  135,  136  OF  CAEEIERS  OF  PASSENGEES. 

that  it  does  not  appear  to  have  been  known  to  any  other  person 
on  board  either  boat,  that  this  witness  and  the  pilot  were  both 
directly  connected  with  and  responsible  for  the  negligence 
charged,  and  that  the  fact  of  racing  is  substantially  sworn  to  by 
two  passengers  on  board  the  New  World,  and  by  the  pilot  and 
assistant  pilot  of  the  Hunt,  and  is  not  denied  by  the  master  of 
the  New  World,  we  cannot  avoid  the  conclusion  that  the  fact  is 
proved.  And  certainly  it  greatly  increases  the  burden  which 
the  act  of  Congress  has  thrown  on  the  claimants.  It  is  possible 
that  those  managing  a  steamboat  engaged  in  a  race  may  use  all 
that  care  and  adopt  all  those  precautions  which  the  dangerous 
power  they  employ  renders  necessary  to  safety.  But  it  is  highly 
improbable.  The  excitement  engendered  by  strife  for  victory  is 
not  a  fit  temper  of  mind  for  men  on  whose  judgment,  vigilance, 
coolness  and  skill  the  lives  of  passengers  depend.  And  when  a 
disastrous  explosion  has  occurred  in  such  a  strife,  this  court  can- 
not treat  the  evidence  of  those  engaged  in  it,  and  prima  facie 
responsible  for  its  consequences,  as  sufficient  to  disprove  their 
own  negligence,  which  the  law  presumes. 

We  consider  the  testimony  of  the  assistant  engineer  and  fire- 
man, who  are  the  only  witnesses  who  speak  to  the  quantity  of 
steam  carried,  as  wholly  unsatisfactory.  They  say  the  boiler  was 
allowed  by  the  inspector  to  carry  forty  pounds  to  the  inch,  and 
that  when  the  explosion  occurred,  they  were  carrying  but  twenty- 
three  pounds.  The  principal  engineer  says  he  does  not  re- 
member how  much  steam  they  had  on.  The  master  is  silent  on 
the  subject  and  says  nothing  as  to  the  speed  of  the  boat.  The 
clear  weight  of  the  evidence  is  that  the  boat  was,  to  use  the  lan- 
guage of  some  of  the  witnesses,  doing  its  best.  We  are  not  con- 
vinced that  she  was  carrying  only  twenty-three  pounds,  little 
more  than  half  her  allowance. 

This  is  the  only  evidence  by  which  the  claimants  have  endeav- 
ored to  encounter  the  presumption  of  negligence.  In  our  opinion 
it  does  not  disprove  it ;  and  consequently  the  claimants  are  liable 
to  damages,  and  the  decree  of  the  District  Court  must  be  af- 
firmed. 


136.  PHILADELPHIA  &  READING  RAILROAD  CO.  V. 

DERBY, 

14  Howard  (U.  S.)  468.    1852. 

Mr.  Justice  Grier  delivered  the  opinion  of  the  court 
This  action  was  brought  by  Derby,  the  plaintiff  below,  to  re- 
cover damages  for  an  injury  suffered  on  the  railroad  of  the 

538 


PHILA.   AND   BEADING   K.   E.   CO.   v.    DEKBY.  §  136 

plaintiffs  in  error.  The  peculiar  facts  of  the  case,  involving  the 
questions  of  law  presented  for  our  consideration,  are  these: 

The  plaintiff  below  was  himself  the  president  of  another  rail- 
road company,  and  a  stockholder  in  this.  He  was  on  the  road  of 
defendants  by  invitation  of  the  president  of  the  company,  not  in 
the  usual  passenger  cars,  but  in  a  small  locomotive  car  used  for 
the  convenience  of  the  officers  of  the  company,  and  paid  no  fare 
for  his  transportation.  The  injury  to  his  person  was  caused  by 
coming  into  collision  with  a  locomotive  tender,  in  the  charge  of 
an  agent  or  servant  of  the  company,  which  was  on  the  same  track, 
and  moving  in  an  opposite  direction.  Another  agent  of  the  com- 
pany, in  the  exercise  of  proper  care  and  caution,  had  given  orders 
to  keep  the  track  clear.  The  driver  of  the  colliding  engine  acted 
in  disobedience  and  disregard  of  these  orders,  and  thus  caused 
the  collision. 

The  instructions  given  by  the  court  below,  at  the  instance  of 
plaintiff,  as  well  as  those  reqliested  by  the  defendant,  and  refused 
by  the  court,  taken  together,  involve  but  two  distinct  points, 
which  have  been  the  subject  of  exception  here,  and  are  in  sub- 
stance as  follows : 

1.  The  court  instructed  the  jury,  that  if  the  plaintiff  was  law- 
fully on  the  road  at  the  time  of  the  collision,  and  the  collision  and 
consequent  injury  to  him  were  caused  by  the  gross  negligence  of 
one  of  the  servants  of  the  defendants,  then  and  there  employed 
on  the  road,  he  is  entitled  to  recover,  notwithstanding  the  cir- 
cumstances given  in  evidence,  and  relied  upon  by  defendant's 
counsel  as  forming  a  defence  to  the  action,  to  wit :  that  the  plain- 
tiff was  a  stockholder  in  the  company,  riding  by  invitation  of  the 
president — paying  no  fare,  and  not  in  the  usual  passenger  cars, 
&e. 

2.  That  the  fact  that  the  engineer  having  the  control  of  the 
colliding  locomotive,  was  forbidden  to  run  on  that  track  at  the 
time,  and  had  acted  in  disobedience  of  such  orders,  was  not  a 
defence  to  the  action. 

1st.  In  support  of  the  objections  to  the  first  instruction,  it  is 
alleged,  "that  no  cause  of  action  can  arise  to  any  person  by 
reason  of  the  occurrence  of  an  unintentional  injury,  while  he  is 
receiving  or  partaking  of  any  of  those  acts  of  kindness  which 
spring  from  mere  social  relations ;  and  that  as  there  was  no  con- 
tract between  the  parties,  express  or  implied,  the  law  would  raise 
no  duty  as  between  them,  for  the  neglect  of  which  an  action  can 
be  sustained." 

In  support  of  these  positions,  the  cases  between  innkeeper  and 
guest  have  been  cited,  such  as  I  Rolle's  Abr.  3,  where  it  is  said, 
"If  a  host  invite  one  to  supper,  and  the  night  being  far  spent,  he 

539 


§  136  OF  CARRIEES  OF  PASSENGEES. 

invites  him  to  stay  all  night,  and  the  guest  be  robbed,  yet  the 
host  shall  not  be  chargeable,  because  the  guest  was  not  a  traveler," 
and  Cayle's  case  (4  Co.  52),  to  the  same  effect,  showing  that 
the  peculiar  liability  of  an  innkeeper  arises  from  the  considera- 
tion paid  for  his  entertainment  of  travelers,  and  does  not  exist 
in  the  case  of  gratuitous  lodging  of  friends  or  guests.  The  case 
of  Farwell  v.  Boston  &  Worcester  R.  R.  Co.,  4  Met.  49,  38  Am.  D. 
339,  has  also  been  cited,  showing  that  the  master  is  not  liable  for 
any  injury  received  by  one  of  his  servants,  in  consequence  of  the 
carelessness  of  another,  while  both  are  engaged  in  the  same  ser- 
vice. 

But  we  are  of  opinion,  that  these  cases  have  no  application  to 
the  present.  The  liability  of  the  defendants  below,  for  the  negli- 
gent and  injurious  act  of  their  servant,  is  not  necessarily  founded 
on  any  contract  or  privity  between  the  parties,  nor  affected  by 
any  relation,  social  or  otherwise,  which  they  bore  to  each  other. 
It  is  true,  a  traveler,  by  stage  coach,  or  other  public  conveyance^, 
who  is  injured  by  the  negligence  of  the  driver,  has  an  action 
against  the  owner,  founded  on  his  contract  to  carry  him  safely. 
But  the  maxim  of  ''respondeat  superior,"  which,  by  legal  impu- 
tation, makes  the  master  liable  for  the  acts  of  his  servant,  is 
wholly  irrespective  of  any  contract,  express  or  implied,  or  any 
other  relation  between  the  injured  party  and  the  master.  If  one 
be  lawfully  on  the  street  or  highway,  and  another's  servant  care- 
lessly drives  a  stage  or  carriage  against  him,  and  injures  his  prop- 
erty or  person,  it  is  no  answer  to  an  action  against  the  master 
for  such  injury,  either,  that  the  plaintiff  was  riding  for  pleasure, 
or  that  he  was  a  stockholder  in  the  road,  or  that  he  had  not  paid 
his  toll,  or  that  he  was  the  guest  of  the  defendant,  or  riding  in  a 
carriage  borrowed  from  him,  or  that  the  defendant  was  the 
friend,  benefactor,  or  brother  of  the  plaintiff.  These  argum'ents, 
arising  from  the  social  or  domestic  relations  of  life  may,  in  some 
cases,  successfully  appeal  to  the  feelings  of  the  plaintiff,  but  will 
usually  have  little  effect  where  the  defendant  is  a  corporation, 
which  is  itself  incapable  of  such  relations  or  the  reciprocation  of 
such  feelings. 

In  this  view  of  the  case,  if  the  plaintiff  was  lawfully  on  the 
road  at  the  time  of  the  collision,  the  court  were  right  in  instruct- 
ing the  jury  that  none  of  the  antecedent  circumstances,  or  acci- 
dents of  his  situation,  could  affect  his  right  to  recover. 

It  is  a  fact  peculiar  to  this  case,  that  the  defendants,  who  are 
liable  for  the  act  of  their  servant  coming  down  the  road,  are  also 
the  carriers  who  were  conveying  the  plaintiff  up  the  road,  and 
that  their  servants  immediately  engaged  in  transporting  the 
plaintiff  were  not  guilty  of  any  negligence,  or  in  fault  for  the 

540 


PHILA.  AND   READING  R.   R.   CO.   v.   DERBY.  §  136 

collision.  But  we  would  not  have  it  inferred,  from  what  has 
been  said,  that  the  circumstances  alleged  in  the  first  point  would 
affect  the  case,  if  the  negligence  which  caused  the  injury  had  been 
committed  by  the  agents  of  the  company  who  were  in  the  immedi- 
ate care  of  the  engine  and  car  in  which  the  plaintiff  rode,  and  he 
was  compelled  to  rely  on  these  counts  of  his  declaration,  founded 
on  the  duty  of  the  defendant  to  carry  him  safely.  This  duty  does 
not  result  alone  from  the  consideration  paid  for  the  service.  It  is 
imposed  by  the  law,  even  where  the  service  is  gratuitous.  "The 
confidence  induced  by  undertaking  any  service  for  another,  is  a 
sufficient  legal  consideration  to  create  a  duty  in  the  performance 
of  it."  See  Coggs  v.  Bernard,  and  cases  cited  in  1  Smith's  Lead- 
ing Cases,  95.  It  is  true,  a  distinction  has  been  taken,  in  some 
cases,  between  simple  negligence,  and  great  or  gross  negligence ; 
and  it  is  said,  that  one  who  acts  gratuitously  is  liable  only  for 
the  latter.  But  this  case  does  not  call  upon  us  to  define  the  dif- 
ference (if  it  be  capable  of  definition),  as  the  verdict  has  found 
this  to  be  a  case  of  gross  negligence. 

When  carriers  undertake  to  convey  persons  by  the  powerful 
but  dangerous  agency  of  steam,  public  policy  and  safety  require 
that  they  be  held  to  the  greatest  possible  care  and  diligence.  And 
whether  the  consideration  for  such  transportation  be  pecuniary 
or  otherwise,  the  personal  safety  of  the  passengers  should  not  be 
left  to  the  sport  of  chance  or  the  negligence  of  careless  agents. 
Any  negligence,  in  such  cases,  may  well  deserve  the  epithet  of 
* '  gross. ' ' 

In  this  view  of  the  case,  also,  we  think  there  was  no  error  in 
the  first  instruction. 

2.  The  second  instruction  involves  the  question  of  the  liability 
of  the  master  where  the  servant  is  in  the  course  of  his  employ- 
ment, but,  in  the  matter  complained  of,  has  acted  contrary  to  the 
express  command  of  his  master. 

The  rule  of  "respondeat  superior/'  or  that  the  master  shall  be 
civilly  liable  for  the  tortious  acts  of  his  servant,  is  of  universal 
application,  whether  the  act  be  one  of  omission  or  commission, 
whether  negligent,  fraudulent,  or  deceitful.  If  it  be  done  in  the 
course  of  his  employment,  the  master  is  liable ;  and  it  makes  no 
difference  that  the  master  did  not  authorize,  or  even  know  of  the 
servant's  act  or  neglect,  or  even  if  he  disapproved  or  forbade  it, 
he  is  equally  liable,  if  the  act  be  done  in  the  course  of  his  ser- 
vant 's  employment.  See  Story  on  Agency,  §  452 ;  Smith  on  Mas- 
ter and  Servant,  152. 

There  may  be  found,  in  some  of  the  numerous  cases  reported 
on  this  subject,  dicta  which,  when  severed  from  the  context  might 
seem  to  countenance  the  doctrine  that  the  master  is  not  liable 

541 


§  136  OF  CAKRIEES  OF  PASSENGERS. 

if  the  act  of  his  servant  was  in  disobedience  of  his  orders.  But 
a  more  careful  examination  will  show  that  they  depended  on  the 
question,  whether  the  servant,  at  the  time  he  did  the  act  com- 
plained of,  was  acting  in  the  course  of  his  employment,  or  in 
other  words,  whether  he  was  or  was  not  at  the  time  in  the  relation 
of  servant  to  the  defendant. 

The  case  of  Sleatli  v.  Wilson,  9  Car.  &  Payne,  607,  states  the 
law  in  such  cases  distinctly  and  correctly. 

In  that  case  a  servant,  having  his  master's  carriage  and  horses 
in  his  possession  and  control,  was  directed  to  take  them  to  a  cer- 
tain place ;  but  instead  of  doing  so  he  went  in  another  direction 
to  deliver  a  parcel  of  his  own,  and,  returning,  drove  against  an 
old  woman  and  injured  her.  Here  the  master  was  held  liable 
for  the  act  of  the  servant,  though  at  the  time  he  committed  the 
offence,  he  was  acting  in  disregard  of  his  master's  orders;  be- 
cause the  master  had  intrusted  the  carriage  to  his  control  and 
care,  and  in  driving  it  he  was  acting  in  the  course  of  his  em- 
ployment. Mr.  Justice  Erskine  remarks,  in  this  case:  "It  is 
quite  clear  that  if  a  servant,  without  his  master's  knowledge, 
takes  his  master's  carriage  out  of  the  coach-house,  and  with  it 
commits  an  injury,  the  master  is  not  answerable,  and  on  this 
ground,  that  the  master  has  not  intrusted  the  servant  with  the 
carriage ;  but  whenever  the  master  has  intrusted  the  servant  with 
the  control  of  the  carriage,  it  is  no  answer,  that  the  servant  acted 
improperly  in  the  management  of  it.  If  it  were,  it  might  be  con- 
tended that  if  a  master  directs  his  servant  to  drive  slowly,  and 
the  servant  disobeys  his  orders,  and  drives  fast,  and  through  his 
negligence  occasions  an  injury,  the  master  will  not  be  liable.  But 
that  is  not  the  law ;  the  master,  in  such  a  case,  will  be  liable,  and 
the  ground  is,  that  he  has  put  it  in  the  servant's  power  to  mis- 
manage the  carriage,  by  intrusting  him  with  it. ' ' 

Although,  among  the  numerous  cases  on  this  subject,  some  may 
be  found  (such  as  the  case  of  Lamb  v.  Palk,  9  C.  &  P.  629)  in 
which  the  court  have  made  some  distinctions  which  are  rather 
subtile  and  astute,  as  to  when  the  servant  may  be  said  to  be  act- 
ing in  the  employ  of  his  master ;  yet  we  find  no  case  which  asserts 
the  doctrine  that  a  master  is  not  liable  for  the  acts  of  a  servant 
in  his  employment,  when  the  particular  act  causing  the  injury 
was  done  in  disregard  of  the  general  orders  or  special  command 
of  the  master.  Such  a  qualification  of  the  maxim  of  respondeat 
siiperior,  would,  in  a  measure,  nullify  it.  A  large  proportion  of 
the  accidents  on  railroads  are  caused  by  the  negligence  of  the 
servants  or  agents  of  the  company.  Nothing  but  the  most  strin- 
gent enforcement  of  discipline,  and  the  most  exact  and  perfect 
obedience  to  every  rule  and  order  emanating  from  a  superior, 

542 


BEIEN   V.  BENNETT.  §§  136,  137 

can  insure  safety  to  life  and  property.  The  intrusting  such  a 
powerful  and  dangerous  engine  as  a  locomotive  to  one  who  will 
not  submit  to  control,  and  render  implicit  obedience  to  orders,  is 
itself  an  act  of  negligence,  the  '^  causa  causans"  of  the  mischief; 
while  the  proximate  cause,  or  the  ipsa  negligentia  which  produces 
it,  may  truly  be  said,  in  most  cases,  to  be  the  disobedience  of  or- 
ders by  the  servant  so  intrusted.  If  such  disobedience  could  be 
set  up  by  a  railroad  company  as  a  defence,  when  charged  with 
negligence,  the  remedy  of  the  injured  party  would  in  most  cases 
be  illusive,  discipline  would  be  relaxed,  and  the  danger  to  the 
life  and  limb  of  the  traveler  greatly  enhanced.  Any  relaxation 
of  the  stringent  policy  and  principles  of  the  law  affecting  such 
cases,  would  be  highly  detrimental  to  the  public  safety. 
The  judgment  of  the  Circuit  Court  is  therefore  affirmed. 


137.    BRIEN  V.  BENNETT, 
8  Car.  &  Payne  724;  34  E.  C.  L.  984.     1839. 

Before  Lord  Abinger,  C.  B.  Case — The  declaration  stated  that 
the  defendant  was  the  proprietor  of  an  omnibus  for  carrying  pas- 
sengers from  Hammersmith  and  divers  other  places  to  London, 
and  being  such  owner,  the  plaintiff  at  the  request  of  the  de- 
fendant, "agreed  to  become  and  became  a  passenger  by  the  said 
omnibus  to  be  safely  and  securely  conveyed ' '  from  Hammersmith 
to  London  for  reasonable  fare  and  reward  to  the  defendant, ' '  and 
the  defendant  then  received  the  plaintiff  as  such  passenger  as 
aforesaid,  and  thereupon  it  became  and  was  the  duty  of  the 
defendant  to  use  due  and  proper  care  that  the  plaintiff  should 
be  safely  and  securely  carried  and  conveyed  by  the  said  omni- 
bus," yet  the  defendant,  not  regarding  his  duty,  did  not  use 
proper  care,  &c.,  but  on  the  contrary  neglected  it,  so  that  by  the 
negligence  of  the  defendant  and  his  servant  in  that  behalf,  "the 
plaintiff,  whilst  such  passenger  as  aforesaid, ' '  fell  from  the  said 
omnibus  upon  the  ground,  and  was  greatly  hurt,  &c.  Pleas,  1st, 
not  guilty;  2nd,  denying  that  the  defendant  was  the  proprietor 
of  the  omnibus;  3rd,  "that  the  plaintiff  did  not  become  a  pas- 
senger by  the  said  omnibus,  nor  did  the  defendant  receive  him, 
the  plaintiff,  as  such  passenger  in  manner  and  form  as  in  the  said 
declaration  is  alleged,"  (concluding  to  the  country). 

It  appeared  that  the  defendant's  omnibus  was  passing  on  its 
journey,  when  the  plaintiff,  who  was  a  gentleman  considerably 
advanced  in  years,  held  up  his  finger  to  cause  the  driver  of  the 
omnibus  to  stop  and  take  him  up,  and  that  upon  his  doing  so  the 

543 


§§  137,  138  OF  CARRIERS  OF  PASSENGERS. 

driver  pulled  up,  and  the  conductor  opened  the  omnibus  door; 
and  that  just  as  the  plaintiff  was  putting  his  foot  on  the  step  of 
the  omnibus^  the  driver  supposing  that  the  plaintiff  had  got  into 
it,  drove  on,  and  the  plaintiff  fell  on  his  face  on  the  ground, 
and  was  much  hurt. 

Platt,  for  the  defendant.  I  submit  that  the  plaintiff  never 
was  a  passenger. 

Lord  Abinger,  C.  B.  I  think  that  the  stopping  of  the  omni- 
bus implies  a  consent  to  t.Jce  the  plaintiff  as  a  passenger,  and 
that  it  is  evidence  to  go  to  the  jury. 

Verdict  for  the  plaintiff — Damages  51. 


138.     STANDISH  V.  NARRAGANSETT  STEAMSHIP  CO., 

Ill  Mass.  512;  15  Am.  R.  66.  1873. 

Tort  for  assault  and  battery  and  false  imprisonment.  Stand- 
ish  bought  a  ticket  for  passage  from  Boston  to  Fall  River  by 
rail,  thence  by  defendant's  steamer  to  New  York,  and  thence  by 
rail  to  Philadelphia.  He  checked  his  baggage,  and  on  entering 
his  berth  showed  his  ticket  to  an  employee  of  the  boat  who  said 
it  was  all  right.  Plaintiff  had  no  recollection  of  what  became  of 
the  ticket.  Next  morning  as  he  was  attempting  to  leave  the  boat 
at  New  York  his  ticket  was  demanded  of  him,  and  he,  not  pro- 
ducing it,  was  turned  back.  He  explained  what  had  happened 
the  night  before  and  showed  his  baggage  checks,  and  his  railroad 
ticket  to  Philadelphia,  but  was  informed  that  he  must  produce 
the  boat  ticket,  or  pay  $4  fare,  or  be  carried  back  to  Fall  River 
that  night.  Being  forcibly  prevented  from  leaving  the  boat, 
after  about  two  hours  he  paid  the  $i  and  left  the  boat.  Judg- 
ment for  plaintiff  for  $50.  Plaintiff  alleged  exceptions  to  the 
rulings  and  the  refusals  to  rule. 

Chapman,  C.  J.  The  jury  having  found  a  verdict  for  the 
plaintiff  for  $50,  he  excepts  to  all  the  rulings  of  the  judge  who 
tried  the  cause,  and  to  his  refusals  to  rule. 

1.  He  contends  that  it  should  not  have  been  left  to  the  jury  to 
find  whether  the  plaintiff  knew  he  was  to  give  up  the  boat  ticket 
before  leaving  the  boat,  because  there  was  no  evidence  whatever 
tending  to  prove  such  knowledge.  But  from  the  manner  in  which 
passengers  purchase  tickets,  and  the  use  necessary  to  be  made  of 
them,  any  person  of  ordinary  intelligence  would  infer  that  they 
are  to  be  given  up  on  the  boat  to  some  officer,  and  as  they  had  not 
been  called  for  earlier,  he  would  naturally  suppose  that  they 

544 


O'BEIEN   V.  B.   AND    W.   E.   E.   CO.  §§  138,  139 

would  be  called  for  at  the  time  of  leaving  the  boat.  Whether  the 
plaintiff  knew  it  was  a  question  for  the  jury,  under  the  circum- 
stances of  the  case. 

2.  He  contends  that  the  defendants  had  no  right  forcibly  to 
detain  the  plaintiff  at  all  for  the  purpose  of  investigating  on  the 
spot  the  circumstances  of  the  case.  As  passenger  carriers  the 
defendants  had  a  right  to  make  reasonable  rules  and  regulations. 
It  would  be  obviously  reasonable  to  require  passengers  to  pur- 
chase tickets  at  the  office  before  the  boat  started,  instead  of  tak- 
ing money  on  board,  and  to  give  up  these  tickets  at  the  end  of  the 
voyage  while  passengers  were  leaving  the  boat.  If  a  passenger 
should  attempt  to  leave  without  producing  a  ticket,  and  should 
allege  that  he  had  lost  it,  they  would  need  to  investigate  the  mat- 
ter, and  to  ascertain  the  reason  for  his  conduct,  and  to  make 
reasonable  provision  for  their  own  security.  The  ruling  re- 
quested that  they  had  no  right  to  detain  him,  even  if  he  was 
fraudulently  trying  to  get  his  passage  without  a  ticket  and  with- 
out paying  the  fare,  was  properly  refused.  The  ruling  was  proper 
that  if  the  plaintiff  lost  his  ticket  it  would  be  his  own  loss,  and  not 
one  which  the  defendants  were  to  bear;  and  it  was  sufficiently 
favorable  to  the  plaintiff  to  rule  "that  they  had  no  right  to  detain 
him  till  he  did  pay  his  fare  or  give  up  a  ticket,  or  to  compel  him 
to  pay  his  fare  or  give  up  a  ticket ;  but,  if  he  knew  that  he  was 
to  give  up  his  ticket  before  leaving  the  boat,  the  defendant  had 
a  right,  if  he  did  not  give  it  up  or  pay  his  fare,  to  detain  him 
for  a  reasonable  time  to  investigate  on  the  spot  the  circumstances 
of  his  case ;  and  if  the  jury  found  that  the  defendants  detained 
him  for  the  purpose  of  compelling  him  to  pay  his  fare  or  to  give 
up  his  ticket,  or  detained  him  for  the  purpose  of  investigating 
his  case  for  an  unreasonable  time,  or  in  an  unreasonable  way, 
he  was  entitled  to  recover."  Under  this  ruling  the  jury  found 
for  the  plaintiff.  As  he  had  sufficient  money  to  pay  his  fare,  as 
it  was  his  duty  to  do,  he  himself  was  the  unnecessary  cause  of 
his  own  detention  for  two  hours,  and  the  damages  found  by  the 
jury  seem  to  be  ample.  Upon  the  ruling  and  verdict,  the  other 
points  insisted  upon  in  the  plaintiff's  brief  became  immaterial. 

Exceptions  overruled. 


139.    O'BRIEN  V.  BOSTON  AND  WORCESTER  RAILROAD 

CO., 

15  Gray  (Mass.)  20;  77  Am.  D.  347.     1860. 

Tort  for  wrongful  ejection  of  a  passenger.     Plaintiff  bought 
a  round  trip  ticket  from  Cordaville  to  Brighton.     He  went  to 
35  545 


§  139  OF  CAERIEES  OF  PASSENGEES. 

Brighton  and  thence  beyond  to  Boston.  The  same  day  he 
boarded  defendant's  train  to  return  from  Boston  to  Cordaville, 
offering  the  conductor  his  return  ticket  from  Brighton  to  Corda- 
ville. On  plaintiff's  refusal  to  pay  fare  either  to  Brighton  or 
Cordaville  the  conductor  rang  the  bell  and  stopped  the  cars  where 
there  was  no  station.  O'Brien  offered  to  pay  before  and  after 
the  cars  stopped,  but  the  conductor  refused  it  and  ejected  him. 
Plaintiff  again  climbed  on  the  ears  and  offered  his  fare,  but  the 
conductor  again  ejected  him.  The  jury  found  the  first  ejection 
justifiable,  but  the  second  not,  and  gave  $150  damages. 

By  Court,  Bigelow,  J.  The  correctness  of  the  instructions 
given  to  the  jury  in  this  case  can  be  readily  ascertained  by  con- 
sidering the  nature  of  the  contract  entered  into  between  the 
plaintiff'  and  the  defendants,  and  the  respective  rights  and  duties 
of  the  parties  under  it.  On  entering  the  cars  of  the  defendants 
at  Boston,  the  plaintiff  had  a  right  to  be  carried  thence  to  his 
place  of  destination  in  that  train  on  paying  the  usual  rate  of 
fare.  This  fare  he  was  bound  to  pay,  according  to  the  regulations 
of  the  company,  or  on  a  reasonable  demand  being  made  therefor ; 
if  he  failed  to  do  so,  then  his  rights  under  the  contract  ceased; 
he  had  forfeited  them  by  his  own  act;  and  having  himself  first 
broken  the  contract,  he  could  not  insist  on  its  fulfillment  by  the 
defendants.  This  is  the  rule  of  common  law.  It  is  also  ex- 
pressly enacted  in  statutes  of  1849,  chapter  91,  section  2,  that  no 
person  who  shall  not  upon  demand  first  pay  the  established  toll 
or  fare  shall  be  entitled  to  be  transported  over  a  railroad.  The 
defendants  therefore  were  not  bound  to  transport  him  farther, 
but  were  justified  in  ejecting  him  from  the  cars  by  the  use 
of  all  lawful  and  proper  means :  Angell  on  Carriers,  sees.  525, 
609 ;  Redfield  on  Railways,  26,  261 ;  Stephen  v.  Smith,  29  Vt.  160. 
Nor  could  he  regain  his  right  to  ask  of  the  defendants  to  per- 
form their  contract  by  his  offer  to  pay  fare  after  his  ejection. 
They  were  not  bound  to  accept  a  performance  after  a  breach. 
The  right  to  demand  the  complete  execution  of  the  contract  by 
the  defendants  was  defeated  by  the  refusal  of  the  plaintiff  to 
do  that  which  was  either  a  condition  precedent  or  a  concurrent 
consideration  on  his  part,  and  the  non-performance  of  which  ab- 
solved the  defendants  of  all  obligation  to  fulfill  the  contract. 
After  being  rightfully  expelled  from  the  train,  he  could  not  again 
enter  the  same  cars  and  require  the  defendants  to  perform  the 
same  contract  which  he  had  previously  broken.  The  right  to  re- 
fuse to  transport  the  plaintiff  farther,  and  to  eject  him  from  the 
train,  would  be  an  idle  and  useless  exercise  of  legal  authority, 
if  the  party,  who  had  hitherto  refused  to  perform  the  contract 

545 


ZAGELMEYEE  v.  C,  S.  &  M.  K.  R.  CO.       §  §  139,  140 

by  paying  liis  fare  when  duly  demanded,  could  immediately  re- 
enter the  ears  and  claim  the  fulfillment  of  the  original  contract 
by  the  defendants.  Besides,  the  defendants  are  not  bound  to  re- 
ceive passengers  at  any  part  of  their  route,  but  only  at  the  regu- 
lar stations  or  appointed  places  on  the  line  of  the  road  established 
by  them  at  reasonable  distances  for  the  proper  accommodation  of 
the  public :  Angell  on  Carriers,  sec.  527  a ;  Murch  v.  Concord  R. 
K  Corp.,  29  N.  H.  39,  61  Am.  Dec.  631.  The  plaintiff  had  there- 
fore no  right  to  enter  the  cars  at  the  place  where  the  train  was 
stopped  for  the  purpose  of  ejecting  him.  A  person  who  had  com- 
mitted no  breach  of  contract  could  not  claim  any  such  right; 
a  fortiori  the  plaintiff  could  not.  It  follows  that,  on  the  facts 
stated  in  the  exceptions,  the  plaintiff  proved  no  just  claim  for 
damages  against  the  defendants,  and  the  instructions  given  to 
the  jury,  under  which  the  verdict  was  rendered,  were  clearly 
erroneous. 

The  court  also  erred  in  rejecting  the  evidence  of  the  regulations 
established  by  the  defendants  concerning  passengers  who  refused 
to  pay  their  fare.  The  right  to  establish  all  needful  and  proper 
regulations  is  vested  in  the  defendants  by  law:  R.  S.,  c.  39,  sec. 
83 ;  Commonwealth  v.  Power,  7  Met.  602,  41  Am.  Dec.  465.  And 
they  should  have  been  permitted  to  prove  them  as  part  of  their 
justification. 

Exceptions  sustained. 


140.      ZAGELMEYER     V.     CINCINNATI,     SAGINAW     & 
MACKINAW  RAILROAD  CO., 

102  Mich.  214;  60  N.  W.  E.  436;  47  Am.  St.  R.  514.    1894. 

Montgomery,  J.  This  action  is  brought  to  recover  damages 
for  being  forcibly  ejected  from  defendant's  car,  while  riding 
as  a  passenger. 

The  defendant  had  adopted  a  regulation  requiring  conductors 
to  make  an  additional  collection  of  ten  cents  on  all  fares  paid 
by  passengers  taking  defendant's  trains  from  regular  ticket  sta- 
tions. A  notice  had  been  posted  in  defendant 's  cars,  which  read : 
"Passengers  will  save  ten  cents  on  each  fare  by  purchasing  tick- 
ets before  entering  the  cars." 

Plaintiff,  without  buying  a  ticket,  boarded  a  car  on  defen- 
dant's train  at  North  Saginaw,  bound  for  Salzburg,  as  he  testi- 
fies, or  West  Bay  City,  according  to  the  testimony  of  the  conduc- 
tor. When  the  conductor  asked  him  for  his  fare,  plaintiff  tendered 
him  a  fifty-cent  piece,  and  said  he  would  pay  him  the  legal  and 

547 


§  140  OF  CAEKIEES  OF  PASSENGEES. 

lawful  rate,  but  would  not  pay  an  extra  ten  cents  because  he 
had  not  purchased  a  ticket.  The  conductor  thereupon  forcibly 
expelled  him  from  the  train.  Plaintiff  recovered  judgment  of 
five  hundred  dollars,  and  defendant  brings  error. 

1.  Defendant  contends  that  the  requirement  of  passengers 
that  they  pay  an  additional  sum  of  ten  cents  for  failure  to  pur- 
chase tickets  where  there  are  stations  is  a  reasonable  regulation 
within  the  power  of  the  company  to  make.  Numerous  cases  have 
been  cited  by  defendant's  counsel  in  which  it  has  been  held  that 
such  a  regulation,  requiring  the  payment  of  a  small  sum  in  addi- 
tion to  the  usual  fare  in  case  of  failure  to  purchase  a  ticket,  is  a 
reasonable  regulation,  which  the  company  has  the  right  to  make : 
Swan  V.  Manchester  etc.  R.  R.  Co.,  132  Mass.  116,  42  Am.  Rep. 
432;  Du  Laurans  v.  First  Division  etc.  Ry.  Co.,  15  Minn.  49, 
2  Am.  Rep.  102 ;  Reese  v.  Pennsylvania  R.  R.  Co.,  131  Pa.  St. 
422,  19  Atl.  R.  72,  17  Am.  St.  R.  818.  Indeed,  there  can  be  lit- 
tle doubt  as  to  the  power  of  the  railroad  company  to  make  such 
a  discrimination  between  its  passengers  when  acting  under  the 
common  law,  nor  do  we  see  any  valid  objection  to  a  railroad  com- 
pany's charging  an  increased  sum  for  passage  where  fares  are 
collected  on  the  train,  provided  that  the  sum  collected  does  not 
exceed  the  statutory  rate.  But  it  is  held,  and  we  think  prop- 
erly, that  the  company  cannot  impose,  as  a  penalty  for  not  pur- 
chasing a  ticket,  such  a  sum  that  the  fare  collected  on  the  train, 
including  such  additional  amount,  shall  exceed  the  maximum  al- 
lowed by  law :  Railroad  Co.  v.  Skillman,  39  Ohio  St.  444 ;  Chase 
v.  New  York  Cent.  R.  R.  Co.,  26  N.  Y.  523. 

2.  But  it  is  contended  that  inasmuch  as  the  plaintiff  might 
have  paid  his  fare  and  avoided  being  expelled  from  the  car,  he  is 
entitled  to  recover  no  substantial  damages.  We  are  cited  to  vari 
ous  Michigan  cases  as  sustaining  this  doctrine.  But  all  the  eases 
cited  are  cases  in  which  the  plaintiff  had  no  ticket  which,  as  be- 
tween himself  and  the  conductor,  entitled  him  to  ride  upon  the 
car  in  question,  and  in  which  there  was  no  tender  of  the  legal 
fare  made.  "We  think  the  case  of  Hufford  v.  Grand  Rapids  etc. 
R.  R.  Co.,  53  Mich.  121,  64  Mich.  631,  31  N.  W.  R.  544,  8  Am.  St. 
R.  859,  fully  recognizes  the  right  of  the  plaintiff  to  recover  sub- 
stantial damages  for  being  evicted  from  the  car  when  he  either 
produces  a  ticket  or  stands  ready  to  pay  the  legal  fare :  See,  also, 
19  Am.  &  Eng.  Ency.  of  Law,  910,  and  cases  cited. 


The  judgment  will  be  affirmed,  with  costs. 


548 


O'KOUKKE    V.   CITIZENS    STKEET   KY.    CO.  §  141 

141.    O'ROURKE  V.  CITIZENS  STREET  RAILWAY  CO., 
103  Tenn.  124;  52  S.  W.  R.  872;  76  Am.  St.  R.  639.    1899. 

Caldwell,  J.  Hugh  O'Rourke  brought  this  action  against 
the  Citizens'  Street  Railway  Company  to  recover  damages  for 
an  alleged  wrongful  and  unlawful  expulsion  from  one  of  its 
cars.  The  jury  returned  a  verdict  against  him,  and  upon  that 
verdict  a  judgment  of  dismissal  was  entered  by  direction  of  the 
court. 

Plaving  appealed  in  error,  O'Rourke  seeks  a  reversal,  remand, 
and  new  trial  for  several  reasons  assigned. 

Shortly  after  2  o'clock  in  the  afternoon  of  March  7,  1897,  the 
plaintiff,  with  his  wife  and  three  small  children,  embarked  upon 
a  Beale  and  Lane  avenue  care  of  the  defendant  in  the  city  of 
Memphis,  and,  after  paying  proper  fares,  requested  and  received 
from  the  conductor  in  charge  the  requisite  number  of  tickets  of 
transfer  to  a  north-bound  Main  street  car  of  the  same  company. 
At  the  proper  place  for  the  contemplated  transfer  the  plaintiff, 
his  wife  and  children,  disembarked  from  the  first  car  mentioned, 
and  promptly  took  passage  upon  the  other  one.  The  conductor  of 
the  latter  car,  after  examining  the  transfer  tickets  tendered  by 
the  plaintiff',  said  to  him:  *'You  were  a  long  time  waiting  for 
this  car."  Plaintiff'  replied:  "We  ain't  w^aited  two  minutes. 
We  just  got  off  that  Beale  and  Lane  avenue  car,  going  south.'*' 
Continuing  the  dialogue,  the  conductor  said:  "Well,  you  will 
have  to  get  off  or  pay  your  fare";  and  the  plaintiff  remarked: 
"I  won't  do  either;  I  won't  get  off  or  pay  my  fare.  I  have  paid 
my  fare  once,  and  that  is,  I  think,  sufficient  to  ride  on."  The 
conductor  then  caused  the  car  to  be  stopped,  took  the  plaintiff 
by  the  arm,  and  ejected  him  and  his  family  from  the  car. 

(Omitting  a  question  of  evidence.) 

The  expulsion,  whether  violent  or  otherwise,  resulted  prima- 
rily from  a  mistake  of  the  first  conductor  in  punching  the  trans- 
fer tickets  so  as  to  indicate  their  issuance  at  1 :40  P.  M.,  when, 
as  a  matter  of  fact,  they  were  issued  nearly  an  hour  later.  The 
second  conductor,  judging  the  tickets  by  the  punch  marks,  as- 
sumed, over  the  statement  of  the  plaintiff  to  the  contrary,  that  he 
had  violated  the  rule  of  the  company  requiring  all  transfer  pas- 
sengers to  take  the  first  connecting  car,  and  upon  that  assumption 
treated  the  tickets  as  expired,  and,  under  another  rule  of  the 
company,  expelled  the  plaintiff  when  he  refused  to  pay  addi- 
tional fare. 

In  his  charge  to  the  jury  the  trial  judge  said :  "A  person  may 

549 


§  141  OF  CAERIEES  OF  PASSENGERS. 

lose  his  right  to  continue  his  journey  as  a  passenger  upon  a  car 
under  the  following  circumstances:  1.  When  he  acts  in  such  a 
way  as  to  endanger  the  peace  and  comfort  of  the  other  passen- 
gers, he  has  no  right  to  continue  his  journey  upon  the  car;  2. 
When  he  presents  to  the  conductor,  as  an  evidence  of  his  right 
to  ride,  a  ticket  or  transfer  check  which  shows  upon  its  face  that 
he  has  no  such  right,  then  he  cannot  continue  his  journey  upon 
such  ticket ;  3.  When  the  conductor,  who  declined  to  accept  the 
ticket  or  transfer,  gave  such  explanation  of  the  defect  in  the 
ticket  or  transfer  as  would  have  satisfied  any  ordinarily  reason- 
able person  that  the  conductor  was  justified  in  refusing  to  take 
it,  then  he  cannot  continue  his  ride." 

Though  entirely  sound  in  law,  the  first  of  these  three  proposi- 
tions is  wholly  inapplicable  in  the  present  case,  there  being  no 
evidence  tending,  in  the  slightest  degree,  to  show  that  the  plain- 
tiff was  guilty  of  conduct  calculated  to  ' '  endanger  the  peace  and 
comfort  of  other  passengers."  Legal  abstractions  in  a  charge  are 
not  always  hurtful,  and,  unless  it  appears  that  they  may  have 
been  so,  the  giving  of  them,  while  never  to  be  approved,  is  not 
reversible  error.  In  this  instance  it  is  not  improbable  that  the 
jury  was  misled  into  the  belief  that  the  court  thought  there  was 
evidence  on  this  particular  point,  and  expected  its  consideration 
in  the  making  up  of  the  verdict ;  hence  the  irrelevant  instruction 
may  have  been  in  some  degree  prejudicial  to  the  plaintiif ,  and  its 
inclusion  in  the  charge  is  therefore  noted  as  one  ground  of 
reversal. 

The  second  proposition  is  one  about  which  the  authorities  are 
in  irreconcilable  conflict.  Many  of  them,  like  the  charge  of  the 
learned  trial  judge,  treat  the  face  of  the  ticket  as  the  sole  cri- 
terion of  the  holder's  right  of  passage,  justify  his  ejection  in  case 
of  defective  ticket  and  refusal  to  pay  fare,  and  allow  him,  as 
his  only  remedy  therefor,  an  action  of  damages  for  the  negligent 
mistake  of  the  agent,  or  for  breach  of  contract  and  not  for  ex- 
pulsion (notably  Pouilin  v.  Canadian  Pac.  Ry.  Co.,  52  Fed.  Rep. 
197 ;  Frederick  v.  Marquette  etc.  R.  R.  Co.,  37  Mich.  342,  26  Am. 
R.  531 ;  Huiford  v.  Grand  Rapids  etc.  Ry.  Co.,  53  Mich.  118,  18 
N.  W.  R.  580;  McKay  v.  Ohio  River  R.  R.  Co.,  34  W.  Va.  65,  11 
S.  E.  R.  737,  26  Am.  St.  R.  913 ;  Yorton  v.  Milwaukee  etc.  Ry.  Co., 
54  Wis.  234,  11  N.  W.  R.  482,  41  Am.  R.  23 ;  Western  Md.  R.  R. 
Co.  V.  Stocksdale,  83  Md.  245 ;  Bradshaw  v.  South  Boston  R.  R. 
Co.,  135  Mass:  407,  46  Am.  R.  481 ;  4  Elliott  on  Railroads,  see. 
1594),  while  others,  on  the  contrary,  deny  the  ticket  such  con- 
clusive force  and  dignity,  and  rule  that  the  passenger  has  the 
right  to  rely  upon  the  acts  and  statements  of  the  ticket  agent  or 
conductor,  and  that,  if  he  be  expelled  on  account  of  a  defective 

550 


O'ROURKE   V.   CITIZENS   STEEET   EY.    CO.  §  141 

ticket  when  he  has  acted  in  good  faith  and  is  without  fault,  the 
carrier  is  liable  in  damages  for  such  expulsion:  New  York  etc. 
R.  R.  Co.  V.  Winter,  143  U.  S.  60, 12  S.  Ct.  R.  356 ;  Laird  v.  Pitts- 
burg Traction  Co.,  166  Pa.  St.  4,  31  Atl.  R.  51 ;  Ellsworth  v.  Chi- 
cago etc.  Ry.  Co.,  95  la.  98,  63  N.  W.  R.  584;  Northern  Pacific 
Ry.  Co.  V.  Pauson,  70  Fed.  Rep.  585 ;  Hot  Springs  Ry.  Co.  v.  De- 
loney,  65  Ark.  177,  45  S.  W.  R.  351,  67  Am.  St.  R.  913 ;  Head  v. 
Georgia  Pacific  Ry.  Co.,  79  Ga.  358,  7  S.  E.  R.  217,  11  Am.  St.  R. 
434 ;  Georgia  R.  R.  Co.  v.  Olds,  77  Ga.  673 ;  Burnham  v.  Grand 
Trunk  Ry.  Co.,  63  Me.  298,  18  Am.  R.  220 ;  Pennsylvania  Co.  v. 
Bray,  125  Ind.  229,  25  N.  E.  R.  439 ;  Hufford  v.  Grand  Rapids 
etc.  Ry.  Co.,  64  Mich.  631,  31  N.  W.  R.  544,  8  Am.  St.  R.  859 ; 
same  case  decided  otherwise  on  former  appeal  and  reported  in  53 
Mich  118 ;  Murdock  v.  Boston  etc.  R.  R.  Co.,  137  Mass.  293,  50 
Am.  R.  307,  and  other  cases. 

We  concur  in  the  latter  view,  and  hold  that  a  person  who  makes 
a  valid  contract  is  entitled  to  passage  according  to  its  terms, 
though  the  face  of  the  ticket  furnished  him  may  not  in  any  true 
sense  express  the  contract.  It  is  the  contract  and  not  the  ticket 
that  gives  the  right  to  transportation.  The  ticket  is  but  an  evi- 
dence of  the  contract,  made  out  and  furnished  by  the  carrier; 
and  if  it  fail  to  disclose  the  true  contract,  the  fault  is  with  the 
carrier,  and  it  is  responsible  for  the  natural  consequences  of  the 
variance. 

The  passenger  is  not  required  in  law,  nor  allowed  in  fact,  to 
print  or  write  or  stamp  the  ticket.  The  carrier  alone  has  that 
right  and  the  passenger  is  authorized  to  believe  and  presume  that 
it  will  be  properly  exercised,  and  that  the  ticket,  when  delivered, 
is  a  faithful  expression  of  the  contract  as  made. 

The  ticket,  whether  for  transfer,  as  in  the  present  case,  or  for 
original  passage,  may  well  be  called  the  carrier's  written  direction 
by  one  agent  to  another  agent  concerning  the  particular  transpor- 
tation in  hand ;  and  if  the  direction  be  contrary  to  the  contract, 
and  expulsion  follow  as  a  consequence,  the  carrier  must  be  an- 
swerable for  all  proximate  damages  ensuing  therefrom,  just  as 
any  other  principal  is  liable  for  the  injurious  result  of  misdirec- 
tion to  his  agent. 

In  our  opinion,  the  legal  result,  in  such  a  ease,  cannot  be  in- 
fluenced by  the  fact  that  the  carrier  has  conducted  the  transac- 
tion through  two  agents  instead  of  one,  for  the  combined  acts 
of  the  two  agents  constitute  but  one  continuous  act  of  the  car- 
rier. Each  agent  is  the  alter  ego  of  the  carrier.  The  issuance  of 
the  void  ticket  is  the  fault  of  the  first  agent,  the  expulsion  is  the 
fault  of  the  second  agent,  and  both  faults  are  those  of  the  prin- 
cipal, which  stands  before  the  court  as  if  it  had  made  the  con- 

551 


§  141  OF  CAEKIEES  OF  PASSENGEES. 

tract,  issued  the  ticket  and  expelled  the  passenger  through  one 
and  the  same  agent. 

Beyond  question,  carriers  have  the  legal  right  to  require  pas- 
sengers to  procure  and  present  tickets,  but  that  does  not  imply 
that  passengers  who  have  done  their  part  in  the  matter,  may  be 
rightfully  expelled  from  the  car  because  the  tickets  they  offer 
chance  to  be  defective,  or  void.  Before  the  rule  of  expulsion  for 
want  of  proper  tickets  can  be  made  absolute  and  universal  in  its 
application,  the  carriers  must  discharge  the  reciprocal  duty  of 
absolute  and  universal  accuracy  in  the  issuance  of  the  tickets. 
The  latter  would  be  impossible,  the  former  harsh  and  unreason- 
able. To  require  a  passenger,  who  has  made  a  valid  contract  for 
transportation  and  paid  the  requisite  fare,  as  did  the  plaintiff, 
to  retire  from  the  car  and  suspend  his  journey  because  of  an 
original  defect  in  the  ticket  furnished  him  by  the  company's 
agent  is  to  visit  the  wrong  of  the  offender  upon  the  offended ;  it  is 
to  make  the  rightful  passenger  suffer  for  the  fault  of  the  carrier, 
and  that,  too,  in  the  latter 's  interest.  This  court  will  not  yield 
its  assent  to  a  result  so  unjust  and  oppressive. 

The  plaintiff  had  a  right  to  believe  the  transfer  ticket  all  that 
it  should  be.  With  it  he  diligently  sought  and  promptly  entered 
the  first  transfer  car,  and,  upon  being  challenged  by  the  con- 
ductor of  that  car  as  too  late  to  use  the  ticket,  he  made  a  fair 
and  reasonable  statement,  showing  that  he  had  just  left  the  first 
car  and  that  the  first  conductor  must  have  wrongly  indicated  the 
hour  of  issuance  on  the  face  of  the  ticket.  On  that  statement  the 
plaintiff  should  have  been  allowed  to  pursue  his  journey  to  its 
end.  He  owed  the  company  no  other  duty,  and  his  expulsion 
under  such  circumstances  was  a  tortious  breach  of  the  contract, 
for  which  he  became  entitled  to  recover  all  approximately  result- 
ing damages,  including  those  for  humiliation  and  mortification,  if 
such  were  in  fact  sustained. 

It  may  be  true,  as  suggested  in  some  of  the  authorities  (Fred- 
erick V.  Marquette  etc.  R.  R.  Co.,  37  Mich.  342,  26  Am.  R.  531 ; 
Pouilin  V.  Canadian  Pac.  Ry.  Co.,  52  Fed.  Rep.  197 ;  4  Elliott  on 
Railroads,  sec.  1594),  that  the  carrier  can  dispatch  its  business 
more  conveniently  and  expeditiously,  and  can  avoid  losses 
through  fraud  and  imposition  more  readily,  by  treating  the 
ticket  as  conclusive  evidence  of  the  passenger's  right  to  be  car- 
ried, than  by  taking  and  adopting  his  ex  parte  statement  of  the 
real  contract,  when  claimed  to  be  different  from  the  ticket ;  yet 
such  ends,  desirable  as  they  may  be  and  are,  afford  no  legal  sanc- 
tion for  the  expulsion  of  a  passenger  who  is  without  fault  and 
whose  ticket  fails  alone  through  the  mistake  or  negligence  of  the 
carrier's  agent,  nor  does  their  desirability  render  the  expulsion 

552 


O'KOUEKE   V.   CITIZENS   STEEET   EY.    CO.  §  141 

of  such  person  any  less  a  tortious  breach  of  the  contract.    Every 
expulsion  of  a  rightful  passenger  is  wrongful. 

It  is  no  answer  to  the  legal  right  of  the  bona  fide  passenger  to 
say  that  the  carrier's  general  interest  is  better  subserved  by  his 
expulsion  than  by  his  carriage,  by  the  violation  of  his  contract 
than  by  its  observance.  His  right  is  not  to  be  affected  by  the  mis- 
takes of  ticket  agents,  or  the  attempted  frauds  of  imposters; 
these  are  to  be  met,  if  met  at  all,  otherwise  than  through  a  rule 
that  excludes  innocent  as  well  as  fraudulent  passengers.  It  is  not 
allowable  to  punish  the  innocent  with  the  guilty,  to  prevent  the 
escape  of  the  guilty. 

A  ticket  agent,  on  selling  ticket  to  proposed  passenger,  re- 
ferred him  to  conductor  for  privilege  of  stopover  at  intermediate 
station;  conductor  authorized  stopover,  but  instead  of  issuing 
stopover  check  only  punched  passenger's  regular  ticket,  telling 
him  that  would  be  sufficient ;  second  conductor,  following  rule  of 
company,  refused  to  recognize  the  punched  ticket,  and  expelled 
passenger  when  he  refused  to  pay  fare ;  a  judgment  in  favor  of  the 
plaintiff'  for  ten  thousand  dollars  was  alhrmed  upon  the  ground 
that  the  expulsion  was  unlawful,  the  court  saying :  ' '  The  reason 
of  such  rule  is  to  be  found  in  the  principle  that  where  a  party 
does  all  that  he  is  required  to  do  under  the  terms  of  contract  into 
which  he  has  entered,  and  is  only  prevented  from  reaping  the 
benefit  of  such  contract  by  the  fault  or  wrongful  act  of  the  other 
party  to  it,  the  law  gives  him  a  remedy  against  the  other  party 
for  such  breach  of  contract" :  New  York  etc.  R.  R.  Co.  v.  Winter, 
143  U.  S.  60,  12  S.  Ct.  R.  356. 

A  street  car  conductor  issued  transfer  ticket,  punched  at  two 
time  marks,  7 :30  A.  M.  and  9  A.  M.,  the  conductor  of  car  to  which 
transfer  was  made  refused  to  accept  ticket  on  ground  that  it  was 
two  hours  old,  and  ejected  passenger  on  his  refusal  to  pay  fare, 
although  informed  that  the  ticket  was  issued  at  9  o'clock,  just 
before  passenger  got  on  car.  Held,  that  the  company  was 
liable  in  damages  for  an  unlawful  ejection,  the  company,  and  not 
the  passenger,  being  responsible  for  the  defective  or  doubtful 
character  of  the  ticket :  Laird  v.  Pittsburgh  Traction  Co.,  166 
Pa.  St.  4,  31  Atl.  R.  51. 

By  mistake  a  ticket  agent  sold  a  ticket  dated  back  three  days; 
the  passenger  presented  it  on  the  day  purchased,  but  was  ex- 
pelled by  the  conductor  because  the  ticket  was  antedated  and 
holder  refused  to  pay  train  fare ;  company  held  liable  for  wrong- 
ful ejection,  the  court  saying  the  validity  of  the  ticket  depended 
upon  the  actual  time  of  sale,  and  not  upon  its  date :  Ellsworth  v. 
Chicago  etc.  Ry.  Co.,  95  la.  98,  63  N.  W.  R.  584. 

The   holder   handed   return   coupon   to   proper   agent  to   be 

553 


§  141  OF  CAEEIEES  OF  PASSENGEKS. 

stamped,  at  same  time  calling  for  sleeping  car  ticket ;  the  agent 
returned  coupon  folded  with  sleeping  car  ticket,  and  holder  put 
them  in  his  pocket  without  examination.  Wlien  presented  on 
train  it  was  discovered  that  agent  had  not  in  fact  stamped  cou- 
pon, and  for  that  reason  conductor  refused  to  accept  it,  and  ex- 
pelled holder  upon  his  refusal  to  pay  fare.  Held,  that  the  holder, 
having  done  his  part,  was  a  legal  passenger,  and  that  the  rail- 
way company  was  liable  in  damages  for  his  expulsion :  Northern 
Pac.  Ry.  Co.  v.  Pauson,  70  Fed.  Rep.  585. 

An  agent  sold  a  canceled  ticket  and  delivered  it  as  a  good  one ; 
the  conductor  refused  it,  and  the  passenger  paid  the  fare  a  sec- 
ond time  to  prevent  ejection.  He  sued  for  damages,  and  the  case 
was  twice  before  the  supreme  court  of  Michigan.  On  the  first 
appeal  the  court  said  that  "as  between  the  conductor  and  the 
passenger,  the  ticket  must  be  the  conclusive  evidence  of  the  ex- 
tent of  the  passenger's  right  to  travel"  (Hufford  v.  Grand  Rap- 
ids etc.  Ry.  Co.,  53  Mich.  118,  18  N.  W.  R.  580) ,  and  on  the  sec- 
ond appeal  the  court,  among  other  language,  used  the  following : 
"When  the  plaintiff  told  the  conductor  on  the  train  that  he  had 
paid  his  fare,  and  stated  the  amount  he  had  paid  to  the  agent 
who  gave  him  the  ticket  he  presented,  and  told  him  it  was  good,  it 
was  the  duty  of  the  conductor  to  accept  the  statement  of  the 
plaintiff  until  he  found  out  it  was  not  true,  no  matter  what  the 
ticket  contained  in  words,  figures,  or  other  marks":  Hufford  v. 
Grand  Rapids  etc.  Ry.  Co.,  64  Mich.  631,  31  N.  W.  R.  544,  8  Am. 
St.  R.  859. 

In  concluding  this  part  of  this  opinion,  it  should  be  remarked 
that  our  own  cases  of  Louisville  etc.  R.  R.  Co.  v.  Fleming,  14  Lea, 
146 ;  Memphis  etc.  R.  R.  Co.  v.  Benson,  85  Tenn.  627,  4  Am.  St. 
Rep.  776,  and  Railroad  v.  Turner,  100  Tenn.  224,  are  not  in  fact, 
and  are  not  claimed  to  be,  in  point  on  the  principal  issue  in  the 
present  case.  The  most  that  was  decided  in  the  first  and  second 
of  them,  in  reference  to  a  railway  ticket,  was  that  persons  desir- 
ing to  travel  upon  railway  trains  must  procure  and  present  tick- 
ets, when  required  by  a  rule  of  the  company;  and  the  last  one 
dealt  with  a  different  branch  of  the  ticket  question,  that  of  notice. 

The  meaning  of  the  third  proposition  in  that  part  of  the  charge 
heretofore  quoted  is  somewhat  obscure;  yet,  its  effect  seems  to 
be  that  a  passenger  "cannot  continue  his  ride"  on  a  transfer 
ticket  when  the  conductor  points  out  such  defect  in  it  as  justifies 
the  conductor,  under  the  rules  of  the  company,  "in  refusing  to 
take  it."  The  instruction  thus  interpreted  is  erroneous,  in  that 
it  impliedly  repeats  the  proposition  that  the  ticket  is  the  sole  cri- 
terion of  the  holder's  right  to  passage,  and  also  in  that  it  attaches 
unwarranted  importance  to  the  explanation  of  the  conductor. 

554 


O'ROURKE   V.   CITIZENS   STREET   RY.    CO.  §  14-1 

No  explanation  the  conductor  might  make  could  affect  the  plain- 
tiff's legal  right  as  a  passenger.  That  right  depended  upon  the 
contract  and  not  upon  the  face  of  the  ticket,  and  it  was  incum^ 
bent  on  the  conductor  to  heed  the  plaintiff's  explanation  and  ob^ 
serve  the  contract,  rather  than  upon  the  plaintiff  to  accept  the 
conductor's  explanation  as  fatal  and  abandon  his  contract.  The 
disclosure  of  the  fault  of  one  agent  by  another  agent  could  not 
absolve  their  principal  from  the  obligation  of  the  contract,  and 
render  the  plaintiff  a  trespasser.  Such  a  result  cannot  be  justi- 
fied in  law,  whatever  the  rule  of  the  company  may  be. 

On  the  face  of  the  transfer  check  were  printed  the  following 
words : 

"Transfer. — Passenger  in  accepting  this  transfer  agrees  to 
read  and  be  governed  by  the  conditions  on  the  back  hereof,  sub- 
ject to  the  rules  of  the  company. 

"G.  F.  Jones,  V.  P.  &  G.  M." 

The  court  instructed  the  jury  that  this  requirement  and  all 
of  the  conditions  on  the  back  were  reasonable,  and  that  plaintiff 
was  bound  to  comply  with  them. 

In  this  instruction  the  court  erred  in  at  least  two  respects. 
Among  the  conditions  printed  on  the  back  of  the  transfer  check 
was  one  in  this  language :  ' '  Part  of  the  conditions  upon  which 
this  transfer  is  given  and  accepted  are  that  the  passenger  exam- 
ines date,  time,  and  direction,  and  sees  that  the  same  are  correct, 
and  complies  with  all  its  conditions." 

This  condition  is  unreasonable,  because  no  passenger  can  be 
bound  to  verify  the  act  of  the  conductor  in  issuing  a  transfer 
check;  and  also  because  no  inexperienced  passenger,  however  in- 
telligent, could,  in  the  time  at  his  command  on  so  brief  a  trip, 
"examine  date,  time,  and  direction"  indicated  by  the  punch 
marks,  and,  without  an  explanation,  see  "that  the  same  are  cor- 
rect." There  is  no  little  complication  about  these  three  items 
on  the  face  of  a  transfer  check,  and  especially  about  the  matter 
of  indicating  the  "time"  of  issuance.  The  plaintiff  made  no  ex- 
amination on  receiving  his  check  from  the  first  conductor,  and 
could  scarcely  understand  the  meaning  of  the  punch  marks  when 
explained  by  the  conductor  who  expelled  him.  The  complexity  of 
the  checks,  and  the  unreasonableness  of  the  rule  requiring  a  pas-/ 
senger  to  verify  its  correctness  when  issued,  could  hardly  be  bet- 
ter illustrated  than  by  a  statement  from  this  record  that  the 
learned  trial  judge  himself,  with  one  of  the  very  checks  here  in- 
volved before  him,  was  not  able  to  understand  its  meaning  with- 
out a  minute  explanation. 

At  the  trial  the  court;  for  its  own  information  on  the  subject, 

555 


§  141  OF  CAKEIEES  OF  PASSENGEES. 

propounded  certain  interrogatories  to  one  of  the  officers  of  tlie 
defendant  about  the  meaning  of  one  of  these  checks.  Those  ques- 
tions and  the  answers  thereto  are  as  follows : 

"The  Court. — I  wanted  to  ask  you  how  would  anybody  know 
what  these  figures  over  there  on  the  right  end  stand  for  ?  What 
is  there  to  indicate  the  hours  and  minutes  outside  of  just  the 
figures  themselves  ? 

<'A. — Well,  I  don't  know  how  I  could  explain  that,  judge. 

"The  Court. — What  are  those  figures  all  over  the  right-hand 
end  of  the  ticket  ? 

''A. — The  black  figures  are  the  hours  and  the  little  figures  in- 
dicate 10,  20,  30,  40  and  50  minutes. 

"The  Court. — I  don't  catch  it  exactly. 

"Witness. — Well,  here  the  figure  is  1  o'clock,  and  if  the  '4' 
is  punched  it  would  be  1 :40,  and  if  the  '  2 '  is  punched  it  would 
be  1 :20. 

"The  Court.— Oh,  yes,  I  didn't  catch  it;  I  didn't  understand 
the  thing.  It  would  be  1 :20  if  the  2  is  punched,  and  if  the  3  is 
punched  1:30;  and  if  the  4  is  punched  1:40,  and  if  the  5  is 
punched  1 :50  ? 

"A. — Yes,  sir;  same  transfer  that  is  used  all  over  the  coun- 
try." 

It  cannot  be  fair  or  just  or  reasonable  to  require  passengers, 
in  the  hurry  of  rapid  street  car  travel,  to  decipher  at  their  peril 
a  check  whose  meaning  so  intelligent  a  judge  cannot  ascertain  by 
careful  and  deliberate  inspection. 

Another  condition  on  the  back  of  the  check  was  expressed 
thus :  "In  accepting  this  transfer,  passenger  agrees  that  in  case 
of  controversy  with  conductor  about  this  ticket  and  its  refusal, 
to  pay  the  regular  fare  charged,  and  apply  at  the  office  of  the 
company  for  refund  of  same  within  three  days." 

This  condition  is  unreasonable,  in  that  it  makes  the  conductor, 
for  the  time,  the  sole  judge  of  the  sufficiency  of  the  ticket,  and  re- 
quires the  passenger  to  pay  additional  fare  though  his  ticket  may 
be  refused  without  sufficient  cause;  and,  further,  in  that  it  re- 
quires the  wronged  passenger,  who  so  pays,  to  apply  for  refund 
at  the  office  of  the  company,  which  must  be  remote  from  the 
houses  and  business  places  of  most  passengers,  and  then  limits  the 
amount  to  be  received  by  such  person  to  that  wrongfully  exacted. 
It  puts  all  of  the  burden  of  the  ' '  controversy ' '  upon  the  wronged 
passenger,  and  none  upon  the  wrongdoing  company,  and  thereby 
makes  the  just  suffer  for  the  unjust. 

Reverse  and  remand. 


556 


FOESEE  V.  A.  GT.  S.  K.  E.  CO.  §  142 

142.     FORSEE  V.  ALABAMA  GREAT  SOUTHERN  RAIL- 
ROAD CO., 

63  Miss.  66;  56  Am.  R.  801.    1885. 

Action  for  ejection  from  train.  Defendant  charged  more 
when  fare  was  paid  on  train,  and  failed  to  afford  plaintiff  op- 
portunity to  purchase  a  ticket.    Judgment  for  plaintiff. 

Arnold,  J.  (Omitting  minor  points.)  It  is  competent  for  a 
railroad  corporation  to  adopt  reasonable  rules  for  the  conduct 
of  its  business,  and  to  determine  and  fix,  within  the  limits  speci- 
fied in  its  charter  and  existing  laws,  the  fare  to  be  paid  by 
passengers  transported  on  its  trains.  It  may  in  the  exercise  of 
this  right  make  discrimination  as  to  the  amount  of  fare  to  be 
charged  for  the  same  distance,  by  charging  a  higher  rate  when 
the  fare  is  paid  on  the  train  than  when  a  ticket  is  purchased  at 
its  office.  Such  a  regulation  has  been  very  generally  considered 
reasonable  and  beneficial  both  to  the  public  and  the  corporation, 
if  carried  out  in  good  faith.  It  imposes  no  hardship  or  injustice 
upon  passengers,  who  may,  if  they  desire  to  do  so,  pay  their 
fare  and  procure  tickets  at  the  lower  rate  before  entering  the 
cars,  and  it  tends  to  protect  the  corporation  from  the  frauds, 
mistakes  and  inconvenience  incident  to  collecting  fare  and  mak- 
ing change  on  trains  while  in  motion,  and  from  imposition  by 
those  who  may  attempt  to  ride  from  one  station  to  another  with- 
out payment,  and  to  enable  conductors  to  attend  to  the  various 
details  of  their  duties  on  the  train  and  at  stations.  State  v. 
Goold,  53  Me.  279;  Jeffersonville  R.  Co.  v.  Rogers,  28  Ind.  1, 
92  Am.  D.  276 ;  Swan  v.  Manchester  etc.  R.  Co.,  132  Mass.  116, 
42  Am.  R.  432. 

But  such  a  regulation  is  invalid  and  cannot  be  sustained, 
unless  the  corporation  affords  reasonable  opportunity  and  facili- 
ties to  passengers  to  procure  tickets  at  the  lower  rate,  and  there- 
by avoid  the  disadvantage  of  such  discrimination.  When  this 
is  done,  a,nd  a  passenger  fails  to  obtain  a  ticket,  it  is  his  own 
fault,  and  he  may  be  ejected  from  the  train  if  he  refuses  to 
pay  the  higher  rate  charged  on  the  train. 

When  such  a  regulation  is  established,  and  a  passenger  en- 
deavors to  buy  a  ticket  before  he  enters  the  cars  and  is  unable 
to  do  so  on  account  of  the  fault  of  the  corporation  or  its  agents 
or  servants,  and  he  offers  to  pay  the  ticket  rate  on  the  train, 
and  refuses  to  pay  the  car  rate,  it  is  unlawful  for  the  corpora- 
tion or  its  agents  or  servants  to  eject  him  from  the  train.  He  is 
entitled  to  travel  at  the  lower  rate,  and  the  corporation  is  a 

557 


§§  142,  143  OF  CAKEIEKS  OF  PASSENGEES. 

trespasser  and  liable  for  the  consequences  if  he  is  ejected  from 
the  train  by  its  agents  or  servants.  The  passenger  may,  under 
such  circumstances,  either  pay  the  excess  demanded  under  pro- 
test, and  afterward  recover  it  by  suit,  or  refuse  to  pay  it,  and 
hold  the  corporation  responsible  in  damages  if  he  is  ejected 
from  the  train.  1  Redf.  Railw.  104;  Evans  v.  M.  &  C.  R.  Co.,  56 
Ala.  246,  28  Am.  R.  771 ;  St.  Louis  etc.  R.  Co.  v.  Dalby,  19  111. 
358 ;  St.  Louis  etc.  R.  Co.  v.  South,  43  111.  176,  92  Am.  D.  103 ; 
Smith  V.  Pittsburg  etc.  R.  Co.,  23  Ohio  St.  10 ;  Porter  v.  N.  Y. 
Cent.  R.  Co.,  34  Barb.  353;  Jeffersonville  R.  Co.  v.  Rogers, 
28  Ind.  1,  92  Am.  D.  276;  Jeffersonville  R.  Co.  v.  Rogers,  38 
Ind.  116,  10  Am.  R.  103;  State  v.  Goold,  53  Me.  279;  Swan  v. 
Manchester  etc.  R.  Co.,  132  Mass.  116,  42  Am.  R.  432 ;  Du  Lau- 
rans  v.  St.  Paul  etc.  R.  Co.,  15  Minn.  49,  2  Am.  R.  102. 

In  such  case  exemplary  damages  would  not  be  recoverable, 
unless  the  expulsion  or  attempted  expulsion  was  characterized 
by  malice,  recklessness,  rudeness,  or  willful  wrong  on  the  part 
of  the  agents  or  servants  of  the  corporation.  Chicago  etc.  R.  Co. 
v.  Scurr,  59  Miss.  456,  42  Am.  R.  373;  Du  Laurans  v.  St.  Paul 
etc.  R.  Co.,  15  Minn.  49,  2  Am.  R.  102;  Pullman  etc.  v.  Reed, 
75  111.  125,  20  Am.  R.  232 ;  Hamilton  v.  Third  Avenue  R.  Co., 
53  N.  Y.  25 ;  Townsend  v.  N.  Y.  Cent.  R.  Co.,  56  N.  Y.  295,  15 
Am.  R.  419 ;  Paine  v.  C.  R.  I.  &  P.  R.  Co.,  45  Iowa,  569 ;  Mc- 
Kinley  v.  C.  &  N.  W.  R.  Co.,  44  Iowa,  314,  24  Am.  R.  748. 

The  cause  was  tried  in  the  court  below  on  theories  and  prin- 
ciples of  law  different  from  those  here  expressed,  and  the  judg- 
ment is  reversed  and  a  new  trial  awarded. 


143.     KENT  V.  BALTIMORE  AND  OHIO  RAILROAD  CO., 

45  Ohio  St.  284;  12  N.  E.  E.  798;  4  Am.  St.  R.  539.     1887. 

Kent  bought  a  thousand-mile  "commercial  travelers'  mileage 
ticket,"  paying  for  it  the  usual  price.  He  did  not  sign  the 
ticket  at  the  time,  nor  even  know  the  conditions  printed  on  it. 
He  used  the  ticket  several  times  without  signature,  but  at  length 
one  of  the  conductors  refused  to  honor  it  unless  he  would  sign 
the  conditions.  He  refused,  as  he  was  unwilling  to  agree  to  one 
condition  releasing  the  company  from  the  fraud  or  negligence  of 
its  agents.  As  the  company's  instructions  to  its  agents,  and  its 
uniform  custom,  required  such  signature,  plaintiff  was  ejected 
from  the  train.  Verdict  for  plaintiff  in  court  of  common  pleas 
was  reversed  in  the  circuit  for  refusal  of  judge  to  instruct  as  re- 
quested, and  the  case  came  up  on  this  question. 

558 


KENT  V.  B.  AND  O.  E.  E.  CO.  §  143 

Owen,  C.  J.  The  instructions  requested  and  refused  i^ored 
the  proof  which  tended  to  show  that  Kent  received  the  ticket 
from  the  company's  agent  without  actual  knowledge  of  the 
conditions  and  directions  written  therein.  They  also  presup- 
posed that,  by  receiving  the  ticket,  Kent  acquiesced  in  all  its 
terms  and  conditions,  in  spite  of  the  fact  (which  the  evidence 
tended  to  prove)  that  he  may  have  been  wholly  ignorant  of 
them. 

It  is  well  settled  that  the  purchaser  of  a  railroad  ticket  does 
not,  by  its  mere  acceptance,  acquiesce  in  and  bind  himself  to 
all  the  terms  and  conditions  printed  thereon,  in  the  absence 
of  actual  knowledge  of  them :  Baltimore  &  0.  R.  R.  Co.  v.  Camp- 
bell, 36  Ohio  St.  647,  38  Am.  Rep.  617;  Davidson  v.  Graham, 
2  Ohio  St.  135 ;  Jones  v.  Voorhees,  10  Ohio,  145 ;  Rawson  v.  Penn- 
sylvania R.  R.  Co.,  48  N.  Y.  212,  8  Am.  Rep.  543;  2  Wharton 
on  Evidence,  sec.  1243 ;  Brown  v.  Eastern  R.  R.  Co.,  11  Cush. 
97 ;  Malone  v.  Boston  etc.  R.  R.  Co.,  12  Gray,  388,  74  Am.  Dec. 
598;  Camden  and  Amboy  R'y  Co.  v.  Baldauf,  16  Pa.  St.  67,  55 
Am.  D.  481 ;  Wade  on  Notices,  sees.  543,  552,  554,  555 ;  Lawson 
on  Carriers,  sees.  106,  107;  Blossom  v.  Dodd,  43  N.  Y.  264;  3  Am. 
Rep.  701 ;  Quimby  v.  Vanderbilt,  17  N.  Y.  306,  72  Am.  Dec.  469. 

There  is  nothing  in  the  circumstance  that  the  ticket  in  the 
case  at  bar  was  sold  at  a  rate  reduced  from  the  regular  fare 
to  take  it  out  of  the  rule.  The  rate  was  the  usual  and  estab- 
lished one  allowed  to  a  numerous  class  of  patrons  comprising 
commercial  travelers  whose  principals  were  shippers  over  the 
company's  road. 

The  contract  between  Kent  and  the  railroad  company  was 
made  when  he  bought  his  ticket,  received  and  paid  for  it; 
Rawson  v.  Pennsylvania  R.  R.  Co.,  supra.  Neither  party 
could,  after  that,  change  its  terms  or  impose  new  conditions 
upon  its  enforcement  without  the  consent  of  the  other.  Ac- 
cording to  the  company's  instructions  to  agents,  and  by 
the  uniform  custom  regulating  the  sale  of  such  tickets,  they 
were  required  to  be  signed  before  their  delivery  to  the  pur- 
chasers. The  company  saw  fit,  in  the  case  at  bar,  to  dispense 
with  this  requirement.  It  received  the  plaintiff's  money,  de- 
livered him  the  ticket,  in  his  ignorance  of  any  request  that  he 
sign  it,  honored  it  for  several  trips  without  first  requiring  him 
to  sign  its  conditions.  It  thereby  waived  this  requirement,  and 
its  conductor  was  not  justified,  while  it  still  retained  plain- 
tiff's money,  in  ejecting  him  from  its  cars  by  reason  of  his  fail- 
ure to  sign  the  ticket,  which  had  already  gone  into  full  effect 
between  the  parties,  and  his  failure  to  pay  the  usual  fare  in 
money  for  a  passage  which  was  already  paid  for. 

559 


§§  143,  144  OF  CAEEIEES  OF  PASSENGEKS. 

The  conclusion  we  have  reached  relieves  us  of  a  consideration 
of  the  question  arising  upon  the  claim  of  counsel  that  the  sixth 
condition  of  this  ticket  was  against  public  policy,  and  would 
have  been  void  if  signed. 

The  trial  court  was  right  in  refusing  the  instructions  re- 
quested. 

The  judgment  of  the  circuit  court  is  reversed,  and  that  of 
the  court  of  common  pleas  affirmed. 


144.     PENNSYLVANIA  RAILROAD  CO.  V.  PARRY, 

55  N.  J.  L.  551;  27  Atl.  R.  914;  39  Am.  St.  B.  654.     1893. 

Action  for  wrongful  ejection  from  a  train.  Parry  was  trav- 
eling on  an  excursion  ticket,  and  to  save  time  left  his  train, 
walked  to  the  station  at  a  junction  point  and  caught  another 
train  that  would  reach  his  station  earlier  than  the  regular  train. 
The  conductor  refused  to  receive  the  excursion  ticket  on  that 
train,  and  on  Parry's  refusal  to  pay  fare  ejected  him.  Error  for 
refusal  of  court  below  to  nonsuit. 

The  Chancellor.  The  motion  to  nonsuit  presented  to  the 
court  below  this  question,  whether  the  contract  between  Mr. 
Parry  and  the  railroad  company  permitted  ]\Ir.  Parry  to  quit  the 
branch  road  train  before  it  reached  its  destination,  and,  pro- 
ceeding in  advance  of  it,  continue  his  journey  in  a  train  with 
which  it  did  not  connect,  and  was  made  available  to  him  only 
l)y  accidental  delay. 

It  is  established  by  the  course  of  judicial  decision  that  when 
a  person  who  purchases  a  railway  ticket  to  a  certain  place  takes 
his  seat  in  a  particular  train  that  goes  to  his  destination  he 
cannot,  without  permission  of  the  railway  company,  while  the 
train  is  reasonably  pursuing  the  duty  of  the  carrier,  leave  it  and 
take  another  train,  and  complete  his  journey  under  the  same 
contract.  The  reason  is  that  his  contract  is  entire,  and  neither 
he  nor  the  company  can  be  required  to  perform  it  in  fragments : 
State  V.  Overton,  24  N.  J.  L.  435,  61  Am.  D.  671 ;  Petrie  v.  Penn- 
sylvania R.  R.  Co.,  42  N.  J.  L.  449 ;  Cheney  v.  Boston  etc.  R.  R. 
Co.,  11  Met.  (Mass.)  121,  45  Am.  D.  190;  Dietrich  v.  Pennsyl- 
vania R.  R.  Co.,  71  Pa.  St.  432,  10  Am.  R.  711 ;  Oil  Creek  etc. 
Ry.  Co.  V.  Clark,  72  Pa.  St.  231 ;  Van  Kirk  v.  Pennsylvania  R.  R. 
Co.,  76  Pa.  St.  73,  18  Am.  R.  404;  Hamilton  v.  New  York  Cent. 
R.  R.  Co.,  51  N.  Y.  100;  Wyman  v.  Northern  Pac.  R.  R.  Co.,  34 
Minn.  210;  McClure  v.  Philadelphia  etc.  R.  R.  Co.,  34  Md.  352, 

560 


PENN.  E.  E.  CO.  V.  PAEEY.  §  144 

6  Am.  R.  345 ;  Stone  v.  Chicago  etc.  Ry.  Co.,  47  Iowa  82,  29  Am. 
R.  458 ;  Clmrchill  v.  Chicago  etc.  R.  R.  Co.,  67  111.  390 ;  Cleve- 
land etc.  R.  R.  Co.  V.  Bartram,  11  Ohio  St.  457;  Hatten  v.  Rail- 
road Co.,  39  Ohio  St.  375;  Wilsey  v.  Louisville  etc.  R.  R.  Co., 
83  Ky.  511. 

It  is  not  necessary  that  the  contract  of  carriage  should  be 
fully  set  out  in  the  passenger's  ticket.  The  ticket  is  a  mere 
token  that  the  fare  has  been  paid,  and  that  the  passenger  has 
the  right  to  be  carried  to  the  destination  it  indicates,  accord- 
ing to  the  reasonable  regulations  of  the  railway  company.  Such 
regulations,  at  least  so  far  as  they  are  known  to  the  passenger, 
enter  into  the  contract  of  passage,  and  it  is  the  duty  of  the 
passenger  to  conform  to  them. 

The  proofs  of  the  plaintiff  below  very  clearly  exhibited  that 
Mr.  Parry  was  familiar  with  the  regulations  under  which  the 
defendant  company  was  accustomed  to  transport  passengers 
between  Riverton  and  Mount  Holly  upon  such  tickets  as  the 
one  he  purchased.  He  admits  that  he  knew  that  the  local  ac- 
commodation train  was  apt  to  be  belated,  and  that  the  train 
upon  the  branch  road  did  not  connect  with  it,  and  hence  that 
the  latter  train  would  not  continue  to  the  Broad  Street  station 
in  Burlington  until  the  former  had  passed,  and  that  it  was 
possible  occasionally  to  catch  it  by  quitting  the  branch  road 
train  while  it  was  M^aiting  upon  the  Y,  and  walking  a  half 
mile  to  the  Broad  Street  depot.  Indeed,  it  was  his  accurate 
knowledge  of  the  regulations  of  the  company,  and  the  delay 
they  occasioned,  that  prompted  him  to  disregard  them  when 
he  saw  an  opportunity  to  expedite  his  transit. 

He  states  that  he  could  have  purchased  an  excursion  ticket 
from  Riverton  to  Burlington  and  back,  and  another  from  Bur- 
lington to  Mount  Holly  and  return,  for  the  same  price  that  he 
paid  for  the  single  excursion  ticket  from  Riverton  to  Mount 
Holly  and  return,  and  in  that  way  have  secured  the  undoubted 
right  to  return  by  the  local  accommodation  if  he  could  have 
caught  it.  'But  he  did  not  purchase  the  two  excursion  tickets 
and  make  his  contract  in  that  way.  He  chose  rather  to  buy 
the  single  ticket,  which  expressly  provided  that  he  should  be 
transported  between  the  terminal  points  of  his  journey  "via 
Burlington  branch,"  and  subjected  him  to  the  regulations  that 
he  should  be  carried  to  the  Broad  Street  station,  and  there 
change  to  the  cars  of  a  connecting  train. 

Under  authority  of  the  rule  referred  to,  even  in  absence  of 

the  express  notice  upon  his  ticket  that  he  should  not  ''stop 

off  en  route*'  after  he  had  once  started  in  a  train,  it  may  be 

questionable  whether  it  would  not  have  been  an  abandonment 

36  561 


y  144,  145  OF  CAEEIEKS  OF  PASSENGEES. 

of  his  contract  if  he  had  left  the  train,  while  it  was  duly  per- 
forming its  duty,  at  any  other  point  than  that  which  the  reg- 
ulations designated  for  that  purpose.  The  notice  upon  the 
ticket  simply  served  to  call  attention  to  that  rule.  But  in 
deciding  this  case  it  is  not  necessary  to  determine  that  ques- 
tion. The  additional  fact  that,  with  the  express  notice  which 
the  ticket  gave  before  him,  he  quit  the  branch  train  with  the 
deliberate  intention  of  not  again  taking  either  it  or  its  con- 
necting train,  appears,  and  in  light  of  such  fact  his  noncon- 
formity to  the  regulations  which  entered  into  his  contract,  and 
consequent  infraction  of  that  contract  and  abandonment  of 
his  rights  thereunder,  become  too  conspicuous  to  admit  of  doubt. 

There  was  nothing  in  the  evidence  to  indicate  that  the  regula- 
tions of  the  defendant  company  were  not  reasonable,  and  it  is 
admitted  that  the  train  abandoned  was  pursuing  its  way  as  those 
regulations  required. 

Under  these  conditions  the  conductor  was  justified  in  de- 
manding a  new  fare,  and,  upon  the  refusal  of  Mr.  Parry  to  pay 
it,  to  remove  him  from  the  train  in  the  manner  that  was  adopted : 
State  V.  Overton,  24  N.  J.  L.  435,  61  Am.  D.  671. 

It  is  our  conclusion  that  the  plaintiff  below  should  have  been 
nonsuited,  and  hence  that  the  judgment  now  reviewed  must  be 
reversed. 


145.    FREDERICK   V.   MARQUETTE,    HOUGHTON   AND 
ONTONAGON  RAILROAD  CO., 

37  Mich.  342;  26  Am.  R.  531.     1877. 

Judgment  for  defendant  below. 

Marston,  J.  This  is  an  action  on  the  case  brought  to  recover 
damages  for  being  unlawfully  ejected  and  put  off  a  train  of 
cars  by  the  conductor  of  the  train.  The  evidence  on  the  part  of 
the  plaintiff  tended  to  show  that  on  the  evening  of  January 
29th,  1876,  he  went  to  the  regular  ticket  office  of  the  defendant 
at  Ishpeming  and  asked  for  a  ticket  to  Marquette,  presenting  to 
the  agent  in  charge  of  the  office  one  dollar  from  which  to  make 
payment  therefor;  that  the  agent  received  the  money,  handed 
plaintiff  a  ticket  and  some  change,  retaining  sixty-five  cents  for 
the  ticket,  the  regular  fare  to  Marquette;  that  the  plaintiff 
did  not  attempt  to  read  what  was  on  his  ticket,  nor  did  he 
count  the  change  received  back  until  next  morning  or  notice  it 
until  then;  that  he  went  on  board  the  train  bound  for  Mar- 
quette, and  after  the  train  left  the  station  the  conductor  took 

562 


FEEDEEICK  v.  M.,  H.  AND  0.  E.  E.  CO.  §  lA'^ 

up  the  ticket,  giving  him  no  cheek  to  indicate  his  destination, 
but  at  the  time  telling  him  his  ticket  was  only  for  Morgan;  that 
when  the  train  reached  jMorgan  the  conductor  told  the  plaintiff 
he  must  get  off  there  or  pay  more  fare;  that  if  he  wanted  to  go 
to  Marquette  he  must  pay  thirty-five  cents  more.  Plaintiff'  in- 
sisted he  had  paid  his  fare  and  purchased  his  ticket  to  Mar- 
quette and  refused  to  pay  the  additional  fare,  whereupon  he 
was  ejected  from  the  train,  etc.  On  the  part  of  the  defendant 
evidence  was  given  tending  to  show  that  the  ticket  purchased 
and  presented  to  the  conductor  was  in  fact  a  ticket  for  JMorgan 
and  not  for  Marquette.  Under  the  pleadings  and  charge  of  the 
court  other  evidence  in  the  case  and  questions  sought  to  be  raised 
need  not  be  referred  to,  and  as  the  real  gist  of  the  action  was  for 
the  expulsion  from  the  cars  by  the  conductor,  the  above  state- 
ment is  deemed  sufficient  to  a  proper  understanding  of  the  case. 

An  erroneous  impression  seems  to  prevail  with  many  that 
where  the  conductor  of  a  passenger  train  ejects  therefrom  a 
passenger  who  has  paid  his  fare  to  a  point  beyond,  but  has  lost 
or  mislaid  his  ticket,  or  whose  ticket  does  not  entitle  him  to  pro- 
ceed farther,  or  upon  that  train,  that  the  company  is  liable  in 
an  action  at  law  for  all  damages  which  the  party  may  in  any 
way  have  sustained  in  consequence  of  the  delay,  mortification, 
injury  to  his  health  or  otherwise,  and  that  the  passenger  is 
under  no  obligation  to  prevent  or  lessen  the  damages  by  pay- 
ment of  the  necessary  additional  fare  to  entitle  him  to  complete 
his  journey  without  interruption.  Although  such  damages  were 
claimed  in  this  case,  under  our  present  view  it  will  be  unneces- 
sary to  discuss  this  question  any  farther  at  present. 

What,  then,  is  the  duty  of  the  conductor  in  a  case  like  the  pres- 
ent? and  what  are  the  passenger's  rights?  In  considering  these 
questions  we  cannot  shut  our  eyes  to  the  manner  and  method 
which  railroad  companies  and  common  carriers  generally  have 
adopted  in  order  to  successfully  carry  out  their  business.  The 
view  to  be  taken  of  these  questions  must  be  a  practical  one,  even 
although  it  may  work,  perhaps,  injustice  in  some  special  and 
particular  cases,  resulting,  however,  in  great  part,  if  not  wholly, 
from  other  causes.  In  Day  v.  Owen,  5  Mich.  521,  72  Am.  D.  62, 
Mr.  Justice  Manning,  in  speaking  of  the  rules  and  regulations 
of  common  carriers,  said,  "All  rules  and  regulations  must  be 
reasonable,  and  to  be  so,  they  should  have  for  their  object  the 
accommodation  of  the  passengers.  Under  this  head  we  include 
every  thing  calculated  to  render  the  transportation  most  com- 
fortable and  least  annoying  to  passengers  generally;  not  to  one, 
or  two,  or  any  given  number  carried  at  a  particular  time,  but  to 
a  large  majority  of  the  passengers  ordinarily  carried.    Such  rules 

563 


§  145  OF  CAERIEES  OF  PASSENGERS. 

and  rej^ulations  should  also  be  of  a  permanent  nature^  and  not 
be  made  for  a  particular  occasion  or  emergency." 

It  is  within  the  common  knowledge  or  experience  of  all  trav- 
elers that  the  uniform  and  perhaps  the  universal  practice  is  for 
railroad  companies  to  issue  tickets  to  passengers  with  the  places 
designated  thereon  from  whence  and  to  which  the  passenger  is 
to  be  carried;  that  these  tickets  are  presented  to  the  conductor 
or  person  in  charge  of  the  train,  and  that  he  accepts  unhesitat- 
ingly of  such  tickets  as  evidence  of  the  contract  entered  into 
between  the  passenger  and  his  principal.  It  is  equally  well 
known  that  the  conductor  has  but  seldom  if  ever  any  other 
means  of  ascertaining,  within  time  to  be  of  any  avail,  the  terms 
of  the  contract,  unless  he  relies  upon  the  statement  of  the  passen- 
ger, contradicted  as  it  would  be  by  the  ticket  produced,  and  that 
even  in  a  very  large  majority  of  cases,  owing  to  the  amount 
of  business  done,  the  agent  in  charge  of  the  office,  and  who  sold 
the  ticket,  could  give  but  very  little  if  any  information  upon 
the  subject.  That  this  system  of  issuing  tickets,  in  a  very  large 
majority  of  cases,  works  well,  causing  but  very  little,  if  any, 
annoyance  to  passengers  generally,  must  be  admitted.  There 
of  course  will  be  cases,  where  a  passenger  who  has  lost  his 
ticket,  or  where  through  mistake  the  wrong  ticket  has  been 
delivered  to  him,  will  be  obliged  to  pay  his  fare  a  second  time 
in  order  to  pursue  his  journey  without  delay,  and  if  unable  to 
do  this,  as  will  sometimes  be  the  case,  very  great  delay  and  injury 
may  result  therefrom.  Such  delay  and  injury  would  not  be  the 
natural  result  of  the  loss  of  a  ticket  or  breach  of  the  contract, 
but  would  be,  at  least  in  part,  in  consequence  of  the  pecuniary 
circumstances  of  the  party.  Such  cases  are  expectional,  and 
however  unfortunate  the  party  may  be  who  is  so  situated, 
yet  we  must  remember  that  no  human  rule  has  ever  yet  been 
devised  that  would  not  at  times  injuriously  affect  those  it  was 
designed  to  accommodate.  This  method  of  purchasing  tickets 
is  also  of  decided  advantage  to  the  public  in  other  respects;  it 
enables  them  to  purchase  tickets  at  times  and  places  deemed 
suitable,  and  to  avoid  thereby  the  crowds  and  delays  they  would 
otherwise  be  subject  to.  Were  no  tickets  issued  and  each  passen- 
ger compelled  to  pay  his  fare  upon  the  cars,  inconvenience  and 
delay  would  result  therefrom,  or  the  officers  in  charge  of  the  train 
to  collect  fares  would  be  increased  in  numbers  to  an  unreasonable 
extent,  while  at  fairs  and  places  of  public  amusement  where 
tickets  are  issued  and  sold  entitling  the  purchaser  to  admission 
and  a  seat,  we  can  see  and  appreciate  the  confusion  which  would 
exist  if  no  tickets  were  sold,  or  if  the  party  presenting  the  ticket 
were  not  upon  such  occasions  to  be  bound  by  its  terms. 

564 


FEEDEKICK  v.  M.,  H.  A^'D  O.  E.  E.  CO.  §  145 

How,  then,  is  the  conductor  to  ascertain  the  contract  entered 
into  between  the  passenger  and  the  railroad  company  where  a 
ticket  is  purchased  and  presented  to  him  ?  Practically  there  are 
but  two  ways — one,  the  evidence  afforded  by  the  ticket;  the 
other,  the  statement  of  the  passenger  contradicted  by  the  ticket. 
Which  should  govern?  In  judicial  investigations  we  appreciate 
the  necessity  of  an  obligation  of  some  kind  and  the  benefit  of 
a  cross-examination.  At  common  law  parties  interested  were  not 
competent  witnesses,  and  even  under  our  statute  the  witness  is 
not  permitted,  in  certain  cases,  to  testify  as  to  facts  which,  if 
true,  were  equally  within  the  knowledge  of  the  opposite  party, 
and  he  cannot  be  procifred.  Yet  here  would  be  an  investigation 
as  to  the  terms  of  a  contract,  where  no  such  safeguards  could 
be  thrown  around  it,  and  where  the  conductor,  at  his  peril,  would 
have  to  accept  of  the  mere  statement  of  the  interested  party.  I 
seriously  doubt  the  practical  workings  of  such  a  method,  except 
for  the  purpose  of  encouraging  and  developing  fraud  and  false- 
hood, and  I  doubt  if  any  system  could  be  devised  that  would 
so  much  tend  to  the  disturbance  and  annoyance  of  the  traveling 
public  generally.  There  is  but  one  rule  which  can  safely  be 
tolerated  with  any  decent  regard  to  the  rights  of  railroad  com- 
panies and  passengers  generally.  As  between  the  conductor  and 
passenger,  and  the  right  of  the  latter  to  travel,  the  ticket  pro- 
duced must  be  conclusive  evidence,  and  he  must  produce  it  when 
called  upon,  as  the  evidence  of  his  right  to  the  seat  he 
claims.  Where  a  passenger  has  purchased  a  ticket  and  the  con- 
ductor does  not  carry  him  according  to  its  terms,  or,  if  the 
company,  through  the  mistake  of  its  agent,  has  given  him  the 
wrong  ticket,  so  that  he  has  been  compelled  to  relinquish  his 
seat,  or  pay  his  fare  a  second  time  in  order  to  retain  it,  he  would 
have  a  remedy  against  the  company  for  a  breach  of  the  con- 
tract, but  he  would  have  to  adopt  a  declaration  differing  es- 
sentially from  the  one  resorted  to  in  this  case. 

We  have  not  thus  far  referred  to  any  authorities  to  sustain 
the  views  herein  taken.  If  any  are  needed,  the  following,  we 
think,  will  be  found  amply  sufficient,  and  we  do  not  consider  it 
necessary  to  analyze  or  review  them.  Townsend  v.  N.  Y.  C.  &.  H. 
R.  E.  r'.  Co.,  56  N.  Y.  298,  15  Am.  Rep.  419;  Hibbard  v. 
N.  Y.  &  E.  R.  R.,  15  id.  470;  Bennett  v.  N.  Y.  C.  &  H.  R.  R.,  5 
Hun,  600;  Downs  v.  N.  Y.  &  N.  H.  R.  R.,  36  Conn.  287, 
4  Am.  Rep.  77 ;  C,  B.  &  Q.  R.  R.  v.  Griffin,  68  111.  499 ;  Pullman 
P.  C.  Co.  V.  Reed,  75  111.  125,  20  Am.  R.  232;  Shelton  v.  Lake 
Shore,  etc.  Ry.  Co.,  29  Ohio  St.  214. 

I  am  of  opinion  that  the  judgment  should  be  affirmed  with 
costs. 

565 


§  146  OF  CAEEIEES  OF  PASSENGEES. 

146.     HUFFORD    V.    GRAND    RAPIDS    AND    INDIANA 
RAILROAD  CO., 

64  Mich.  631;  31  N.  W.  R.  544;  8  Am.  St.  B.  859.     1887. 

Assault  and  battery  for  threatening  a  wrongful  ejection  of 
plaintiff  from  the  train.  The  ticket  agent  at  Manton  sold  him  a 
punched  ticket  originally  good  for  a  ride  from  Sturgis  to  Trav- 
erse City.  Plaintiff  noticed  the  peculiarity  in  the  ticket  and  re- 
turned to  the  ticket  office  to  ask  if  the  ticket  was  good.  The  agent 
assured  him  that  it  was  good  from  Manton  to  Traverse  City.  As 
a  matter  of  fact  the  punch  mark  told  the  conductor  that  it  had 
been  punched  for  a  ride  to  Walton  Junction  beyond  INIantou, 
and  was  good  only  from  Walton  Junction  to  Traverse  City.  The 
conductor  so  informed  plaintiff,  who  told  the  former  of  his  con- 
versation with  the  agent  when  he  bought  the  ticket,  adding  that 
he  had  paid  for  his  ticket  and  should  not  pay  his  fare  again. 
The  conductor  then  laid  his  hands  on  plaintiff's  shoulder,  rang 
the  bell  and  said  that  unless  he  paid  his  fare,  which  was  twenty- 
five  cents,  he  would  be  put  off  the  train.  The  fare  was  then 
paid  under  protest.  Verdict  for  defendant,  and  plaintiff  brings 
error. 

Sherwood,  J.  (After  stating  the  facts.)  There  seems  to  be 
no  question  but  that  the  plaintiff  purchased  his  ticket  of  an 
agent  of  the  company,  who  had  the  right  to  sell  the  same  and 
receive  the  plaintiff's  money  therefor;  that  the  ticket  covered 
the  distance  between  the  two  stations,  and  was  purchased  by  the 
plaintiff  in  perfect  good  faith ;  that  the  ticket  was  genuine,  and 
was  issued  by  the  company,  and  one  which  its  agent  had  the  right 
to  sell  to  passengers.  The  plaintiff  had  a  right  to  rely  upon  the 
statements  of  the  agent  that  it  was  good,  and  entitled  him  to  a 
ride  between  the  two  stations.  It  was  a  contract  for  a  ride  be- 
tween the  two  stations  that  the  defendant's  agent  had  a  right 
to  make,  and  did  make,  with  the  plaintiff. 

The  ticket  given  by  the  agent  to  the  plaintiff  was  the  evi- 
dence agreed  upon  by  the  parties,  by  which  the  defendant  should 
thereafter  recognize  the  rights  of  plaintiff  in  his  contract;  and 
neither  the  company  nor  any  of  its  agents  could  thereafter  be 
permitted  to  say  the  ticket  was  not  such  evidence,  and  conclusive 
upon  the  subject.  Passengers  are  not  interested  in  the  internal 
affairs  of  the  companies  whose  coaches  they  ride  in,  nor  are 
they  required  to  know  the  rules  and  regulations  made  by  the 
directors  of  the  company  for  the  control  of  the  action  of  its 
agents  and  the  management  of  its  affairs. 

566 


AUEEBACII  V.  N.  Y,  C.  AND  H.  E.  R.  E.  CO.    §§  146,  147 

When  the  plaintiff  told  the  conductor  on  the  train  that  he  had 
paid  his  fare,  and  stated  the  amount  he  paid  to  the  agent  who 
gave  him  the  ticket  he  presented,  and  told  him  it  was  good,  it  was 
the  duty  of  the  conductor  to  accept  the  statement  of  the  plaintiff 
until  he  found  out  it  was  not  true,  no  matter  what  the  ticket  con- 
tained in  words,  figures,  or  other  marks.  All  sorts  of  people 
travel  upon  the  cars ;  and  the  regulations  and  management  of  the 
company's  business  and  trains  which  would  not  protect  the  edu- 
cated and  uneducated,  the  wise  and  the  ignorant,  alike,  would  be 
unreasonable  indeed.  On  the  undisputed  facts  in  this  case,  I 
think  the  plaintiff  was  entitled  to  go  to  Walton  junction  upon 
the  ticket  he  presented  to  the  conductor ;  Maroney  v.  Old  Colony 
&  N.  R'y  Co.,  106  Mass.  153,  8  Am.  Rep.  305;  Murdock  v.  Bos- 
ton &  A.  R.  R.  Co.,  137  Mass.  293,  50  Am.  Rep.  307.  See  this 
case  in  53  Mich.  118.     .     .     . 

The  judgment  must  be  reversed  and  a  new  trial  granted. 

Compare  with  Frederick  v.  Railroad,  37  Mich.  342,  26  Am.  R. 
531. 


147.     AUERBACH  V.  NEW  YORK  CENTRAL  AND  E[UD- 
SON  RIVER  RAILROAD  CO., 

89  N.  Y.  281;  42  Am.  B.  290.     1882. 

Action  for  damages  for  wrongful  ejection  from  defendant's 
train  on  which  plaintiff  was  a  passenger.  Judgment  for  de- 
fendant. 

Earl,  J.  This  action  was  brought  by  the  plaintiff  to  recover 
damages  for  being  ejected  from  one  of  the  defendant's  cars  while 
he  was  riding  therein  as  a  passenger.  He  was  nonsuited  at  the 
trial  and  the  judgment  entered  upon  the  nonsuit  was  affirmed  at 
the  General  Term.  The  material  facts  of  the  case  are  as  follows : 
The  plaintiff,  being  in  St.  Louis  on  the  21st  day  of  September, 
1877,  purchased  of  the  Ohio  and  Mississippi  Railway  Company  a 
ticket  for  a  passage  from  St.  Louis  over  the  several  railroads  men- 
tioned in  coupons  annexed  to  the  ticket  to  the  city  of  New  York, 
It  was  specified  on  the  ticket  that  it  was  ''good  for  one  contin- 
uous passage  to  point  named  on  coupon  attached ' ' ;  that  in  selling 
the  ticket  for  passage  over  other  roads  the  company  making  the 
sale  acted  only  as  agent  for  such  other  roads,  and  assumed  no 
responsibility  beyond  its  own  line;  that  the  holder  of  the  ticket 
agreed  with  the  respective  companies  over  whose  roads  he  was 
to  be  carried  to  use  the  same  on  or  before  the  26th  day  of  Sep- 

567 


§  147  OF  CAEKIEES  OF  PASSENGEES. 

tember  then  instant,  and  that  if  he  failed  to  comply  with  such 
agreement  either  of  the  companies  might  refuse  to  accept  the 
ticket  or  any  coupons  thereof,  and  demand  the  full  regular  fare 
which  he  agreed  to  pay.  He  left  St.  Louis  on  the  day  he  bought 
the  ticket  and  rode  to  Cincinnati,  and  there  stopped  a  day.  He 
then  rode  to  Cleveland  and  stayed  there  a  few  hours,  and  then 
rode  on  to  Buffalo,  reaching  there  on  the  24th,  and  stopped  there 
a  day.  Before  reaching  Buffalo  he  had  used  all  the  coupons  ex- 
cept the  one  entitling  him  to  a  passage  over  the  defendant 's  road 
from  Buffalo  to  New  York.  The  material  part  of  the  language 
upon  that  coupon  is  as  follows: 

"Issued  by  Ohio  and  Mississippi  railway  on  account  of  New 
York  Central  and  Hudson  River  railroad,  one  first-class  passage, 
Buffalo  to  New  York." 

Being  desirous  of  stopping  at  Rochester,  the  plaintiff  pur- 
chased a  ticket  over  the  defendant's  road  from  Buffalo  to  Roches- 
ter, and  upon  that  ticket  rode  to  Rochester  on  the  25th,  reaching 
there  in  the  afternoon.  He  remained  there  about  a  day,  and  in 
the  afternoon  of  the  26th  of  September,  he  entered  one  of  the 
cars  upon  the  defendant's  road  to  complete  his  passage  to  the 
city  of  New  York.  He  presented  his  ticket,  with  the  one  coupon 
attached  to  the  conductor,  and  it  was  accepted  by  him,  and  was 
recognized  as  a  proper  ticket  and  punched  several  times,  until 
the  plaintiff  reached  Hudson  about  three  or  four  o'clock,  A.  M., 
September  27,  when  the  conductor  in  charge  of  the  train  de- 
clined to  recognize  the  ticket  on  the  ground  that  the  time  had 
run  out,  and  demanded  three  dollars  fare  to  the  city  of  New 
York,  which  the  plaintiff  declined  to  pay.  The  conductor  with 
some  force  then  ejected  him  from  the  car. 

The  trial  judge  nonsuited  the  plaintiff  on  the  ground  that  the 
ticket  entitled  him  to  a  continuous  passage  from  Buffalo  to  New 
York,  and  not  from  any  intermediate  point  to  New  York.  The 
General  Term  affirmed  the  nonsuit  upon  the  ground,  that  al- 
though the  plaintiff  commenced  his  passage  upon  the  26th  of 
September,  he  could  not  continue  it  after  that  date  on  that  ticket. 

We  are  of  opinion  that  the  plaintiff  was  improperly  nonsuited. 
The  contract  at  St.  Louis,  evidenced  by  the  ticket  and  coupons 
there  sold,  was  not  a  contract  by  any  one  company  or  by  all  the 
companies  named  in  the  coupons  jointly  for  a  continuous  passage 
from  St.  Louis  to  New  York.  A  separate  contract  was  made  for 
a  continuous  passage  over  each  of  the  roads  mentioned  in  the 
several  coupons.  Each  company  through  the  agent  selling  the 
ticket  made  a  contract  for  passage  over  its  road,  and  each  com- 
pany assumed  responsibility  for  the  passenger  only  over  its 
road.    No  company  was  liable  for  any  accident  or  default  upon 

568 


AUERBACH  v.  N.  Y.  C.  AND  II.  E.  E.  E.  CO.  §  147 

any  road  but  its  own.  This  was  so  by  the  very  terms  of  the 
agreement  printed  upon  the  ticket.  Hence  the  defendant  is  not 
in  a  position  to  claim  that  the  plaintiff  was  bound  to  a  continuous 
passage  from  St.  Louis  to  New  York,  and  it  cannot  complain  of 
the  stoppages  at  Cincinnati  and  Cleveland.  Hutch,  on  Carriers, 
§  579;  Brooke  v.  Grand  Trunk  Eailway  Co.,  15  Mich.  332. 

But  the  plaintiff  was  bound  to  a  continuous  passage  over  the 
defendant's  road,  that  is,  the  plaintiff  could  not  enter  one  train 
of  the  defendant's  cars  and  then  leave  it,  and  subsequently  take 
another  train  and  complete  his  journey.  He  was  not,  however, 
bound  to  commence  his  passage  at  Buffalo.  He  could  commence 
it  at  Rochester  or  Albany,  or  any  other  point  between  Buffalo 
and  New  York,  and  then  make  it  continuous.  The  language  of 
the  corftract  and  the  purpose  which  may  be  supposed  to  have  in- 
fluenced the  making  of  it  do  not  require  a  construction  which 
would  make  it  imperative  upon  a  passenger  to  enter  a  train 
at  Buffalo.  No  possible  harm  or  inconvenience  could  come  to 
the  defendant  if  the  passenger  should  forego  his  right  to  ride 
from  Buffalo  and  ride  only  from  Rochester  or  Albany.  The 
purpose  was  only  to  secure  a  continuous  passage  after  the  passen- 
ger had  once  entered  upon  a  train.  On  the  26tli  of  September 
the  plaintiff,  having  the  right  to  enter  a  train  at  Buffalo,  it  can- 
not be  perceived  why  he  could  not,  with  the  same  ticket,  right- 
fully enter  a  train  upon  the  same  line  at  any  point  nearer  to 
the  place  of  destination. 

When  the  plaintiff  entered  the  train  at  Rochester  on  the  after- 
noon of  the  26th  of  September  and  presented  his  ticket  and  it  was 
accepted  and  punched,  it  was  then  used  within  the  meaning  of 
the  contract.  It  could  then  have  been  taken  up.  So  far  as  the 
l^laintift*  was  concerned  it  had  then  performed  its  office.  It  was 
thereafter  left  with  him  not  for  his  convenience,  but  under  regu- 
lations of  the  defendant  for  its  convenience,  that  it  might 
know  that  his  passage  had  been  paid  for.  The  contract  did  not 
specify  that  the  passage  should  be  completed  on  or  before  the 
26th,  but  that  the  ticket  should  be  used  on  or  before  that  day, 
and  that  it  was  so  used  it  seems  to  us  is  too  clear  for  dispute. 

The  language  printed  upon  the  ticket  must  be  regarded  as  the 
language  of  the  defendant,  and  if  it  is  of  doubtful  import  the 
doubt  should  not  be  solved  to  the  detriment  of  the  passenger.  If 
it  had  been  intended  by  the  defendant  that  the  passage  should  be 
continuous  from  St.  Louis  to  New  York,  or  that  it  should  actu- 
ally commence  at  Buffalo  and  be  continuous  to  the  city  of  New 
York,  or  that  the  passage  should  be  completed  on  or  before  the 
26th  of  September,  such  intention  should  have  been  plainly  ex- 

569 


§§  147,  148  OF  CAEEIERS  OF  PASSENGERS. 

pressed  and  not  left  in  such  doubt  as  might  and  naturally  would 
mislead  the  passenger. 

We  have  carefully  examined  the  authorities  to  which  the 
learned  counsel  for  the  defendant  has  called  our  attention,  and 
it  is  sufficient  to  say  that  none  of  them  are  in  conflict  with  the 
views  above  expressed. 

The  judgment  should  be  reversed  and  a  new  trial  granted, 
costs  to  abide  the  event. 


148.     BOSTON  &  LOWELL  RAILROAD  CO.  V.  PROCTOR, 
1  Allen  (Mass.)  267;  79  Am.  D.  729.     1861. 

Action  for  fare  for  carrying  defendant  from  Lowell  to  Bos- 
ton. The  ticket  was  purchased  of  the  Vermont  Central,  con- 
sisted of  four  coupons  and  had  been  used  as  far  as  Lowell  by 
March  17th.  He  staid  there  until  March  21st.  Judgment  for 
defendant  and  plaintiffs  appealed. 

By  Court,  Chapman,  J.  The  plaintiffs,  having  carried  the 
defendant  from  Lowell  to  Boston,  March  21,  1860,  are  entitled 
to  recover  their  usual  fare,  being  seventy-five  cents,  unless  he 
has  paid  or  tendered  the  amount.  He  offered  to  the  conductor 
a  ticket  dated  March  16,  1860,  and  having  the  words,  "Good 
only  two  days  after  date,"  stamped  in  red  ink  upon  its  face.  He 
contends  that  the  plaintiff's  were  bound  to  accept  this  ticket; 
and  that,  contrary  to  its  terms,  he  could  at  his  option,  and 
against  their  will,  extend  the  contract  from  two  days  to  five  days. 

But  the  courts  of  law  must  enforce  contracts  as  the  parties 
make  them,  and  can  neither  set  aside  any  of  their  terms  nor  add 
new  ones.  In  the  absence  of  fraud,  which  is  not  suggested  here, 
the  court  can  see  no  reason  why  the  defendant  should  make  his 
ticket  available  beyond  its  terms.  The  plaintiffs  are  not  bound 
to  issue  tickets;  and  if  they  do  issue  them,  they  alone  must  fix 
their  terms.  They  were  not  bound  to  make  an  arrangement  by 
which  the  defendant,  being  in  Vermont,  could  purchase  a  ticket 
through  to  Boston.  But  it  is  for  the  accommodation  of  the  pub- 
lic, as  well  as  of  railroad  companies,  that  arrangements  should 
exist  among  connecting  lines  of  roads,  and  that  there  should 
be  tickets,  by  means  of  which  passengers  can  pass  over  the  whole 
route.  Such  arrangements,  however,  would  be  impossible,  if 
every  passenger  were  at  liberty  to  disregard  them.  Should 
abuses  grow  out  of  the  system,  legislation  can  correct  them. 

Judgment  for  the  plaintiffs. 

570 


C.  &  N.  W.  KY.  CO.  V.  WILLIAMS.  §  149 

149.     CPIICAGO  &  NORTHWESTERN  RAILWAY  CO.,  AP- 
PELLANTS, V.  WILLIAMS, 

55  III.  185;  8  Am.  R.  611.     1870. 

Action  for  damages  for  wrongful  exclusion  of  plaintiff  from 
defendant's  railway  car.  Judgment  of  $200  for  plaintiff,  and 
defendants  appealed. 

Scott,  J.  There  is  but  one  question  of  any  considerable  im- 
portance presented  by  the  record  in  this  case. 

It  is  simply  whether  a  railroad  company,  which,  by  our  statute 
and  the  common  law,  is  a  common  carrier  of  passengers,  in  a  case 
where  the  company,  by  their  rules  and  regulations,  have  desig- 
nated a  certain  car  in  their  passenger  train  for  the  exclusive  use 
of  ladies,  and  gentlemen  accompanied  by  ladies,  can  exclude 
from  the  privileges  of  such  car  a  colored  woman,  holding  a  first- 
class  ticket,  for  no  other  reason  except  her  color. 

The  evidence  in  the  case  establishes  these  facts :  That,  as  was 
the  custom  on  appellants'  road,  they  had  set  apart  in  their  pas- 
senger trains  a  car  for  the  exclusive  use  of  ladies,  and  gentlemen 
accompanied  by  ladies,  and  that  such  a  car,  called  the  "ladies' 
car, ' '  was  attached  to  the  train  in  question.  The  appellee  resided 
at  Rockford,  and  being  desirous  of  going  from  that  station  to 
Belvidere,  on  the  road  of  appellants,  for  that  purpose  purchased 
of  the  agent  of  the  appellants  a  ticket,  which  entitled  the  holder 
to  a  seat  in  a  first-class  car  on  their  road.  On  the  arrival  of  the 
train  at  the  Rockford  station,  the  appellee  offered  and  endeav- 
ored to  enter  the  ladies'  car,  but  was  refused  permission  so  to 
do,  and  was  directed  to  go  forward  to  the  car  set  apart  for  and 
occupied  mostly  by  men.  On  the  appellee  persisting  on  entering 
the  ladies'  car,  force  enough  was  used  by  the  brakeman  to  pre- 
vent her.  At  the  time  she  attempted  to  obtain  a  seat 
in  that  car,  on  appellant's  train,  there  were  vacant  and  un- 
occupied seats  in  it,  for  one  of  the  female  witnesses  states  that 
she,  with  two  other  ladies,  a  few  moments  afterward,  entered 
the  same  car  at  that  station  and  found  two  vacant  seats,  and 
occupied  the  same.  No  objection  whatever  was  made,  nor  is  it 
insisted  any  other  existed,  to  appellee  taking  a  seat  in  the  ladies' 
car,  except  her  color.  The  appellee  was  clad  in  plain  and  decent 
apparel,  and  it  is  not  suggested,  in  the  evidence  or  otherwise, 
that  she  was  not  a  woman  of  good  character  and  proper  be- 
havior. 

It  does  not  appear  that  the  company  had  ever  set  apart  a  car 
for  the  exclusive  use,  or  provided  any  separate  seats  for  the  use 

571 


§  149  OF  CAEEIEES  OF  PASSENGEES. 

of  colored  persons  who  might  desire  to  pass  over  their  line  of 
road.  The  evidence  discloses  that  colored  vv^omen  sometimes  rode 
in  the  ladies'  car,  and  sometimes  in  the  other  car,  and  there  was, 
in  fact,  no  rule  or  regulation  of  the  company  in  regard  to  colored 
passengers. 

The  case  turns  somewhat  on  what  are  reasonable  rules,  and  the 
power  of  railroad  companies  to  establish  and  enforce  them. 

It  is  the  undoubted  right  of  railroad  companies  to  make  all 
reasonable  rules  and  regulations  for  the  safety  and  comfort  of 
passengers  traveling  on  their  line  of  road.  It  is  not  only  their 
right,  but  it  is  their  duty  to  make  such  rules  and  regulations. 
It  is  alike  the  interest  of  the  companies  and  the  public  that  such 
rules  should  be  established  and  enforced,  and  ample  authority 
is  conferred  by  law  on  the  agents  and  servants  of  the  companies 
to  enforce  all  reasonable  regulations  made  for  the  safety  and 
convenience  of  passengers. 

It  was  held  in  the  case  of  the  111.  Cent.  R.  R.  Co.  v.  Whitte- 
more,  43  111.  423,  92  Am.  D.  138,  that,  for  a  non-compliance  with  a 
reasonable  rule  of  the  company,  a  party  might  be  expelled  from 
a  train  at  a  point  other  than  a  regular  station. 

If  a  person  on  a  train  becomes  disorderly,  profane  or  dangerous 
and  offensive  in  his  conduct,  it  is  the  duty  of  the  conductor 
to  expel  such  guilty  party,  or  at  least  to  assign  him  to  a  car  where 
he  will  not  endanger  or  annoy  the  other  passengers.  Whatever 
rules  tend  to  the  comfort,  order  and  safety  of  the  passengers,  the 
company  are  fully  authorized  to  make,  and  are  amply  empow- 
ered to  enforce  compliance  therewith.  But  such  rules  and  regu- 
lations must  always  be  reasonable  and  uniform  in  respect  to  per- 
sons. 

A  railroad  company  cannot  capriciously  discriminate  between 
passengers  on  account  of  their  nativity,  color,  race,  social  posi- 
tion or  their  political  or  religious  beliefs.  Whatever  discrimi- 
nations are  made,  must  be  on  some  principle,  or  for  some  reason, 
that  the  law  recognizes  as  just  and  equitable,  and  founded  in 
good  public  policy.  What  are  reasonable  rules  is  a  question  of 
law,  and  is  for  the  court  to  determine,  under  all  the  circum- 
stances in  each  particular  case. 

In  the  present  instance,  the  rule  that  set  apart  a  car  for  the  ex- 
clusive use  of  ladies,  and  gentlemen  accompanied  by  ladies,  is  a 
reasonable  one,  and  the  power  of  the  comDany  to  establish  it  has 
never  been  doubted. 

If  the  appellee  is  to  be  denied  the  privilege  of  the  "ladies* 
ear,"  for  which  she  was  willing  to  pay,  and  "had  paid,  full  com- 
pensation to  the  company,  a  privilege  which  is  accorded  alike 
to  all  women,  whether  they  are  rich  or  poor,  it  must  be  on  some 

572 


C.  &  N.  W.  RY.  CO.  V.  WILLIAMS.  §  149 

principle  or  under  some  rule  of  the  company  that  the  law 
would  recognize  as  reasonable  and  just.  If  she  was  denied  that 
privilege  by  the  mere  caprice  of  the  brakeman  and  conductor, 
and  under  no  reasonable  rule  of  the  company,  or,  what  is  still 
worse,  as  the  evidence  would  indicate,  through  mere  wantonness 
on  the  part  of  the  brakeman,  then  it  was  unreasonable,  and  there- 
fore unlawful.  It  is  not  pretended  that  there  was  any  rule  that 
excluded  her,  or  that  the  managing  officers  of  the  company  had 
ever  given  any  directions  to  exclude  colored  persons  from  that 
car.  If,  however,  there  was  such  a  rule,  it  could  not  be  justified 
on  the  ground  of  mere  prejudice.  Such  a  rule  must  have  for  its 
foundation  a  better  and  a  sounder  reason,  and  one  more  in 
consonance  with  the  enlightened  judgment  of  reasonable  men. 
An  unreasonable  rule,  that  affects  the  convenience  and  com- 
fort of  passengers,  is  unlawful,  simply  because  it  is  unreasonable. 
The  State  v.  Overton,  4  Zab.  435,  61  Am.  D.  671. 

In  the  case  of  the  Westchester  and  Philadelphia  R.  R.  Co.  v. 
Miles,  55  Pa.  St.  209,  93  Am.  D.  744,  it  was  admitted  that  no 
one  could  be  excluded  from  a  carriage  by  a  public  carrier  on 
account  of  color,  religious  belief,  political  relations  or  prejudice, 
but  it  was  held  not  to  be  an  unreasonable  regulation  to  seat 
passengers  so  as  to  preserve  order  and  decorum,  and  prevent 
contacts  and  collisions  arising  from  well-known  repugnances, 
and,  therefore,  a  rule  that  required  a  colored  woman  to  occupy 
a  separate  seat  in  a  car  furnished  by  the  company,  equally  as 
comfortable  and  safe  as  that  furnished  for  other  passengers, 
was  not  an  unreasonable  rule. 

Under  some  circumstances,  this  might  not  be  an  unreasonable 
rule. 

At  all  events,  public  carriers,  until  they  do  furnish  separate 
seats  equal  in  comfort  and  safety  to  those  furnished  for  other 
travelers,  must  be  held  to  have  no  right  to  discriminate  between 
passengers  on  account  of  color,  race  or  nativity,  alone. 

We  do  not  understand  that  the  appellee  was  bound  to  go  for- 
ward to  the  car  set  apart  for  and  occupied  mostly  by  men,  when 
she  was  directed  by  the  brakeman.  It  is  a  sufficient  answ^er  to 
say,  that  that  car  was  not  provided  by  any  rule  of  the  company 
for  the  use  of  women,  and  that  another  one  was.  This  fact  was 
known  to  the  appellee  at  the  time.  She  may  have  undertaken 
the  journey  alone  in  view  of  that  very  fact,  as  women  often  do. 

The  above  views  dispose  of  all  the  objections  taken  to  the  in- 
structions given  by  the  court  on  behalf  of  the  appellee,  and  the 
refusal  of  the  court  to  give  those  asked  on  the  part  of  the  appel- 
lants, except  the  one  which  tells  the  jury  that  they  may  give 
damages  above  the  actual   damages  sustained,   for  the  delay, 

573 


§§  119,  150  OF  CAEEIEES  OF  PASSENGEKS. 

vexation  and  indignity  to  which  the  appellee  was  exposed,  if 
she  was  wrongfully  excluded  from  the  car.  If  the  party  in  such 
case  is  confined  to  the  actual  pecuniary  damages  sustained,  it 
would,  most  often,  be  no  compensation  at  all,  above  nominal 
damages,  and  no  salutary  effect  would  be  produced  on  the  wrong- 
doer by  such  a  verdict.  But  we  apprehend  that,  if  the  act  is 
wrongfully  and  wantonly  committed,  the  party  may  recover, 
in  addition  to  the  actual  damages,  something  for  the  indignity, 
vexation  and  disgrace  to  which  the  party  has  been  subjected. 

It  is  insisted  that  the  damages  are  excessive,  in  view  of  the 
slight  injury  sustained. 

There  is  evidence  from  which  the  jury  could  find  that  the 
brakeman  treated  the  appellee  very  rudely,  and  placed  his  hand 
on  her  and  pushed  her  away  from  the  car.  The  act  was  com- 
mitted in  a  public  place,  and  whatever  disgrace  was  inflicted  on 
her  was  in  the  presence  of  strangers  and  friends.  The  act  was, 
in  itself,  wrongful,  and  without  the  shadow  of  a  reasonable  ex- 
cuse, and  the  damages  are  not  too  high.  The  jury  saw  the 
witnesses,  and  heard  their  testimony,  and  with  their  finding  we 
are  fully  satisfied. 

Perceiving  no  error  in  the  record,  the  judgment  is  affirmed. 


150.     ZACHERY  V.  MOBILE  AND  OHIO  RAILROAD  CO., 

74  Miss.  520;  21  So.  B.  246;  60  Am.  St.  R.  529.     1896. 

Action  against  a  common  carrier  for  refusal  to  receive  plain- 
tiff as  a  passenger  because  he  was  blind.  Defendants  demurred, 
and  the  court  below  sustained  the  demurrer, 

Stockdale,  J.  (After  stating  the  facts.)  The  demurrer,  ad- 
mitting the  truth  of  the  allegations  of  the  complaint,  one  of 
which  is  to  the  effect  that  the  appellant  had  been  riding  on  ap- 
pellee's road  for  several  years,  pursuing  his  occupation,  and  had 
given  no  cause  of  complaint,  and  none  had  ever  been  made  until 
January  25,  1896,  and  that  the  sole  reason  for  rejecting  him  as 
a  passenger  was  his  blindness,  it  follows  that  the  naked  question, 
detached  from  any  attending  circumstances,  is  whether  a  per- 
son, otherwise  qualified,  may  be  rejected  as  a  passenger  for  the 
sole  reason  that  he  is  blind,  and  this  court  is  asked  to  announce 
that  to  be  the  law.  There  seems  to  be  a  scarcity  of  decisions  on 
the  precise  point. 

In  Rorer  on  Railroads,  volume  2,  page  957,  it  is  laid  down  as 
the  law  that,  "as  common  carriers  of  persons,  railroad  com- 

574 


ZACHERY  V.  M.  AND  O.  E.  E.  CO.  §  150 

panics  are  ordinarily  bound  to  carry,  according  to  their  reason- 
able rules  and  regulations,  and  in  accordance  with  their  regular 
time  cards,  all  persons  who  apply  to  be  carried,  and  are  ready  to 
pay,  and  do  pay,  the  usual  fare  when  required,  except  unsuitable 
persons,  hereinafter  mentioned."  These  exceptions  are  those 
who  desire  to  injure  the  company,  notoriously  bad  or  justly  sus- 
picious persons,  gross  or  immoral  persons,  drunken  persons,  and 
those  who  refuse  to  obey  the  rules. 

It  is  laid  down  in  Angell  on  Carriers,  section  524,  to  be  the 
common  law  that  "it  is  the  duty  of  public  or  common  carriers 
of  persons  to  receive  all  persons  who  apply  for  a  passage"  (these 
words  italicized).  In  section  525  it  is  said:  "It  is,  in  fact,  beyond 
all  doubt  that  the  first  and  most  general  obligation  on  the  part 
of  public  carriers  of  passengers,  whether  by  land  or  water,  is 
to  carry  persons  who  apply  for  a  passage." 

These  are  the  general  rules,  subject  always  to  the  exceptions 
enumerated;  but  we  have  not  found  any  decision  holding  that, 
as  a  matter  of  law,  a  person  can  be  rejected  because  he  is  blind. 
It  is  urged  by  counsel  for  appellee  that  a  rule  of  a  railroad 
company  authorizing  the  refusal,  by  its  agents,  of  an  infirm 
passenger,  unless  provided  with  an  assistant,  is  reasonable  and 
demanded  by  the  convenience  of  the  traveling  public.  A  propo- 
sition we  do  not  controvert,  but  in  this  case  there  is  nothing  in 
the  record  to  show  that  appellee  had  made  or  promulgated 
such  a  rule.  On  the  contrary,  it  is  alleged  in  the  complaint  and 
admitted  by  the  demurrer  that  appellant  was  not  infirm  but  ro- 
bust, able  to  take  care  of  himself,  and  to  comply  with  the  rules 
applying  to  passengers  generally ;  that  he  had  been  traveling  on 
appellee's  road  for  several  years,  and  given  no  cause  of  com- 
plaint to  appellee's  servants,  and  none  was  ever  made.  All  this 
being  admitted  by  the  demurrer,  the  doctrines  laid  down  in 
Sevier  v.  Vicksburg  etc.  E.  R.  Co.,  61  Miss.  10,  48  Am.  Rep.  74, 
relied  on  by  appellee,  do  not  apply  to  this  case.  There  is  nothing 
to  show  that  appellant  was  informed  that  the  absence  of  an  at- 
tendant was  the  cause  of  his  rejection,  and  nothing  to  show  that 
he  needed  one.  Appellee's  counsel  contends  that  infirm  passen- 
gers require  more  and  extra  care,  and  for  that  reason  railroad 
companies  have  the  right  to  reject  them.  But  appellee  admits, 
by  its  demurrer,  that  appellant  was  not  such  a  passenger,  and 
had  never  required  extra  care. 

We  do  not  desire  to  intimate  any  opinion  as  to  what  regula- 
tions and  rules  railroad  companies  may  make  as  to  passengers, 
but  we  decline  to  hold  that,  ae^  a  proposition  of  law,  stripped  of 
all  attending  circumstances,  public  carriers  of  passengers  can 

575 


ss 


5  150.  151  OF  CAEKIEES  OF  PASSENGERS. 


reject  a  person  otherwise  qualified,  upon  the  sole  ground  that  he 
is  blind. 

The  judgment  of  the  court  below  is,  therefore,  reversed,  the 
demurrer  overruled  and  the  cause  remanded. 


151.     MEMPHIS  &  CHARLESTON  RAILROAD  CO.  V. 

BENSON, 

85  Tenn.  627;  4  Am.  St.  R.  776.     1887. 

LuRTON,  J.  This  was  a  suit  for  damages  for  an  alleged  un- 
lawful ejection  of  the  defendant  in  error  from  the  train  of  the 
plaintiff  in  error.  There  was  a  judgment  for  five  hundred  dol- 
lars in  favor  of  the  defendant  in  error  rendered  by  the  circuit 
judge,  who  tried  the  case  without  a  jury.  The  railway  company 
have  appealed,  and  a  number  of  reasons  are  assigned  for  re- 
versal. 

The  defendant  in  error  went  upon  the  passenger  train  at 
Memphis,  Tennessee,  and  went  into  the  car  set  apart  for  ladies, 
and  gentlemen  traveling  with  ladies.  This  car  at  the  time  was 
overcrowded,  and  he  was  unable  to  obtain  a  seat,  and  this  con- 
dition of  things  he  saw  before  the  train  left  Memphis,  yet  he 
made  no  demand  at  Memphis,  the  terminal  station,  for  a  seat; 
but,  preferring  to  take  his  chances  to  get  a  seat,  he  remained 
on  the  car  standing  until  after  the  train  had  started  upon  its 
trip.  After  the  train  had  gotten  well  out  of  Memphis,  the  usual 
demand  was  made  upon  him  for  his  ticket.  This  he  declined 
to  surrender,  taking  the  position  that  he  would  not  surrender 
his  ticket  until  he  had  been  furnished  with  a  seat.  The  con- 
ductor called  his  attention  to  the  fact  that  there  was  not  a  va- 
cant seat  in  the  car  in  which  he  was,  and  offered  to  get  him  a 
seat  in  the  next  forward  car,  and  further  saying  that  it 
would  be  but  a  short  time  before  seats  would  be  vacated  by 
passengers  for  local  stations,  and  that  he  would  then  give  him 
a  seat  in  the  ladies'  car.  This  he  declined,  and  demanded  a  seat 
in  the  ladies'  car  before  surrendering  his  ticket. 

The  demand  of  the  conductor  for  his  ticket  was  renewed  in 
a  short  time,  with  the  statement  that  he  must  either  get  off  the 
train  or  surrender  his  ticket.  This  demand  was  again  refused, 
and  he  further  declared  that  he  would  not  leave  the  train.  Upon 
the  train  stopping  at  the  next  regular  station,  he,  still  refusing  to 
leave  the  train,  was  ejected. 

He  neither  surrendered  his  ticket  to  the  conductor  nor  showed 
that  he  had  such  a  ticket,  nor  did  he  state  the  point  to  which 

576 


M.  &  a  k.  R.  CO.  V.  BKNKOi^.  §  i51 

he  was  destined.  lie  bases  his  refusal  to  go  into  the  forward 
car  upon  the  ground  that  it  was  a  smoking-car,  and  that  the 
foul  air  of  such  a  car  was  likely  to  make  him  ill. 

There  can  be  no  doubt  that  the  contract  of  a  carrier  of  pas- 
sengers by  railway  is  one  not  only  to  furnish  the  passenger  withi 
transportation,  but  with  the  comfort  of  a  seat.  The  contract  is 
no  more  performed  by  furnishing  him  with  a  seat  without  trans- 
portation than  it  is  when  he  is  offered  transportation  without  a 
seat.  It  is  equally  well  settled  that  the  passenger  need  not  sur- 
render his  ticket  until  he  is  furnished  with  a  seat,  for  the  ticket 
is  the  evidence  of  the  contract  which  entitles  him  to  one.  But  it 
cannot  be  that  one  may  ride  free  because  not  furnished  with  a 
seat.  If  the  passenger  chooses  to  accept  transportation  without 
a  seat,  he  must,  on  demand,  pay  his  fare.  If  unwilling  to  ride 
without  transportation  is  furnished  him  in  a  seat,  he  must  get  off 
at  first  opportunity,  and  by  so  doing  may  bring  his  action  for 
breach  of  contract,  and  recover  as  damages  such  sum  as  will 
compensate  him  for  such  breach,  including  such  damages  as  are 
the  natural  and  immediate  results  of  such  breach.  Rorer  on 
Railroads,  968,  969 ;  Davis  v.  Kansas  City  etc.  R.  R.  Co.,  53  Mo. 
317,  14  Am.  R.  457;  St.  Louis  etc.  R'y  Co.  v.  Leigh,  45  Ark.  368, 
55  Am.  Rep.  558. 

It  results  that  for  the  indignity  and  vexation  consequent 
upon  the  ejection  in  this  case  there  can  be  no  recovery.  This 
result  is  made  the  more  certain  by  the  facts  of  this  case,  it  ap- 
pearing that  at  the  time  this  passenger  entered  the  car  at  the 
terminal  station  he  saw  that  this  car  assigned  to  ladies,  and 
gentlemen  with  ladies,  was  overcrowded,  and  he  knew  that  he 
must  either  ride  standing  or  take  a  seat  in  the  car  called  the 
smoking-car.  He  gave  the  railway  company  no  opportunity  to 
furnish  additional  seats  while  at  this  terminal  station.  We 
have  at  this  term,  in  the  case  of  Chesapeake  etc.  R.  R.  Co.  v. 
Wells,  85  Tenn.  613,  4  S.  W.  R.  5,  held  that  a  railway  company 
may  make  reasonable  regulations  concerning  the  car  in  which 
a  passenger  might  be  required  to  ride,  provided  that  equal  ac- 
commodations were  furnished  to  all  holding  first-class  tickets, 
and  that  a  regulation  assigning  a  particular  car  to  persons  of 
color,  that  car  being  in  all  respects  equal  in  comfort  to  any  other 
in  the  train,  was  reasonable.  This  rule  has  been  sustained  in 
the  courts  of  many  states :  West  Chester  R.  R.  Co.  v.  Miles,  55 
Pa.  St.  209,  93  Am.  Dec.  744;  Chicago  and  Northwestern  R'y 
Co.  V.  Williams,  55  111.  185,  8  Am.  Rep.  641. 

So  we  think  a  regulation  setting  apart  a  car  for  ladies,  or 
gentlemen  accompanied  by  ladies,  a  reasonable  regulation.     A 
passenger  may  not  dictate  where  he  will  sit  or  in  which  ear  he 
37  577 


§  151  OF  CAEEIEES  OF  PASSENGEES. 

will  ride.  If  he  is  furnished  accommodations  equal  in  all  re- 
spects to  those  furnished  other  passengers  on  the  same  train,  he 
cannot  complain,  and  this  was  the  substance  of  our  decision  in 
the  Ida  Wells  case.  The  doctrine  is  equally  applicable  here. 
This  passenger,  when  he  took  passage  at  Memphis,  did  it  with 
knowledge  that  the  ladies'  car  was  crowded,  and  that  he  would 
either  have  to  ride  standing  in  that  car,  or  go  into  the  car  de- 
signed exclusively  for  gentlemen,  and  in  which  smoking  was 
permitted.  The  requirement  that  he  should  go  temporarily  into 
the  smoking-car  under  these  circumstances  was  not  unreasonable. 
He  ought  not  to  have  started  when  he  did  unless  willing  to  sub- 
mit to  what  he  realized  was  an  inevitable  necessity,  without  giv- 
ing the  carrier  notice  of  his  demand. 

But  upon  another  ground  this  judgment  cannot  be  sustained, 
even  for  damages  for  breach  of  comtract.  The  defendant  in 
error  in  his  deposition  states  that  he  had  a  ticket  purchased  at 
Austin,  Texas,  which  entitled  him  to  passage  to  Atlanta,  Georgia, 
and  that  one  of  the  coupons  upon  this  ticket  entitled  him  to 
passage  over  the  road  of  plaintiff  in  error  from  Memphis  to 
Chattanooga.  The  ticket  he  does  not  produce,  nor  does  he 
account  for  his  failure  to  produce  it  by  proof  of  its  loss,  or  that 
he  had  subsequently  used  it.  Objection  was  taken  to  this  evi- 
dence, and  the  objection  overruled,  upon  promise  of  counsel,  at  a 
subsequent  stage  of  the  trial,  to  account  for  its  non-production 
so  as  to  let  in  secondary  evidence  of  the  fact  of  the  contract 
therein  contained.  This  was  not  done.  It  is  elementary  law  that 
the  contents  of  a  written  or  printed  contract  cannot  be  proven 
without  the  failure  to  produce  the  paper  itself  is  accounted 
for.  This  objection  is  fatal  to  the  whole  case  of  defendant  in 
error ;  for  there  is  no  legal  evidence  that  he  had  a  ticket.  This 
being  so,  he  was  rightfully  ejected. 

The  conductor  who  ejected  this  passenger,  while  using  no 
unnecessary  force,  did  use  unnecessarily  abusive  language,  such 
as  was  calculated  to  unnecessarily  insult  and  degrade  the  person 
ejected.  In  exercising  a  legal  right  of  ejection  railway  com- 
panies must  not  do  so  in  an  abusive  way.  They  are  the  servants 
of  the  public,  and  while  their  right  to  enforce  reasonable  regu- 
lations will  be  upheld,  yet  the  regulations  must  not  only  be 
reasonable  in  themselves,  but  the  manner  and  method  of  enforcing 
such  regulations  must  be  reasonable,  and  free  from  unnecessary 
force,  as  well  as  from  unnecessary  indignity.  The  unreasonable 
demands  of  the  defendant  in  error  afford  some  excuse  for  the 
temper  shown  by  the  conductor. 

In  view,  however,  of  the  absence  of  any  proof  of  a  legal  char- 
acter that  the  ejected  passenger  had  any  ticket,  and  his  refusal 

578 


INGALLS  V.  BILLS.  §§  151,  152 

to  pay  fare,  and  that,  therefore,  the  relation  of  passenger  and 
carrier  did  not  exist,  we  are  constrained  to  reverse  the  judgment 
of  the  circuit  judge,  and  anter  judgment  here  for  phiintiff  in 
error,  the  carrier  in  such  case  not  being  held  responsible  for  the 
ejection. 

152.     INGALLS  V.  BILLS, 

9  3Iet.  (Mass.)  1;  43  Am.  D.  346.     1845. 

Assumpsit  on  an  implied  promise  of  defendants  as  common 
carriers  to  carry  plaintiff  safely  from  Boston  to  Cambridge. 
He  was  riding  on  the  top  of  the  coach  when  an  axle  broke  and 
the  coach  settled  on  one  side,  but  did  not  upset.  Plaintiff  was 
frightened  and  leaped  to  the  ground,  receiving  the  injuries 
complained  of.  There  was  a  flaw  in  the  iron  of  the  axle,  entirely 
surrounded  by  sound  iron,  and  no  external  examination  would 
have  revealed  it.  There  was  evidence  that  all  possible  care  had 
been  taken  to  use  the  best  materials  and  workmanship  and  to 
keep  the  coach  in  good  repair.  The  judge  refused  to  charge  that 
this  was  enough,  but  did  charge  as  stated  in  the  opinion,  and 
further  that  if,  because  defendants  failed  to  fulfill  their  obli- 
gations plaintiff  as  a  prudent  precaution  leaped  from  the  coach, 
his  recovery  would  not  be  defeated  by  the  fact  that  it  might  now 
appear  that  he  might  safely  have  remained  in  his  seat. 

By  Court,  Hubbard,  J.  The  question  presented  in  this  case  is 
one  of  much  importance  to  a  community  like  ours,  so  many  of 
whose  citizens  are  engaged  in  business  which  requires  their  trans- 
portation from  place  to  place  in  vehicles  furnished  by  others; 
and  though  speed  seems  to  be  the  most  desirable  element  in 
modern  travel,  yet  the  law  points  more  specifically  to  the  se- 
curity of  the  traveler. 

Under  the  charge  of  the  learned  judge  who  tried  this  case,  we 
are  called  upon  to  decide  whether  the  proprietors  of  stage- 
coaches are  answerable  for  all  injuries  to  passengers  arising 
from  accidents  happening  to  their  coaches,  although  proceeding 
from  causes  which  the  greatest  care  in  the  examination  and  in- 
spection of  the  coach  could  not  guard  against,  or  prevent ;  or,  in 
other  words,  whether  a  coach  must  be  alike  free  from  secret 
defects,  which  the  owner  can  not  detect,  after  the  most  critical 
examination,  as  from  those  which  might,  on  such  an  examina- 
tion, be  discovered.  The  learned  judge  ruled,  that  the  defend- 
ants, as  proprietors  of  a  coach,  were  bound  by  law,  and  by  an 
implied  promise  on  their  part,  to  provide  a  coach,  not  only  ap- 

579 


§  152  OF  CAKEIEKS  OF  PASSENGEES. 

parently  but  really  roadworthy,  and  that  they  were  liable  for  any 
injury  that  might  arise  to  a  passenger  from  a  defect  in  the  orig- 
inal construction  of  the  coach,  although  the  imperfection  was 
not  visible,  and  could  not  be  discovered  upon  inspection  and 
examination. 

The  law  respecting  common  carriers  has  ever  been  rigidly  en- 
forced, and  probably  there  has  been  as  little  relaxation  of  the 
doctrine,  as  maintained  by  the  ancient  authorities,  respecting 
this  species  of  contract,  as  in  any  one  branch  of  the  common  law. 
This  arises  from  the  great  confidence  necessarily  reposed  in  per- 
sons engaged  in  this  employment.  Goods  are  intrusted  to  their 
sole  charge  and  oversight,  and  for  which  they  receive  a  suitable 
compensation;  and  they  have  been,  and  still  are,  held  responsi- 
ble for  the  safe  delivery  of  the  goods,  with  but  two  exceptions, 
viz.,  the  act  of  God,  and  the  king's  enemies;  so  that  the  owners 
of  goods  may  be  protected  against  collusive  robberies,  against 
thefts  and  embezzlements,  and  negligent  transportation.  But 
in  regard  to  the  carriage  of  passengers,  the  same  principles  of 
law  have  not  been  applied;  and  for  the  obvious  reason,  that  a 
great  distinction  exists  between  persons  and  goods,  the  passen- 
gers being  capable  of  taking  care  of  themselves,  and  of  exer- 
cising that  vigilance  and  foresight,  in  the  maintenance  of  their 
rights,  which  the  owners  of  goods  can  not  do,  who  have  intrusted 
them  to  others. 

It  is  contended  by  the  counsel  for  the  plaintiff,  that  the  pro- 
prietor of  a  stage-coach  is  held  responsible  for  the  safe  carriage 
of  passengers,  so  far  that  he  is  a  warrantor  that  his  coach  is  road- 
worthy,  that  is,  is  absolutely  sufficient  for  the  performance  of 
the  journey  undertaken;  and  that  if  an  accident  happens,  the 
proof  of  the  greatest  care,  caution,  and  diligence,  in  the  selec- 
tion of  the  coach,  and  in  the  preservation  of  it  during  its  use, 
will  not  be  a  defense  to  the  owner;  and  it  is  insisted  that  this 
position  is  supported  by  various  authorities.  The  cases,  among 
many  others  cited,  which  are  more  especially  relied  upon,  are 
those  of  Israel  v.  Clark,  4  Esp.  259 ;  Crofts  v.  Waterhouse,  3 
Bing.  319 ;  Bremner  v.  Williams,  1  Car.  &  P.  414 ;  and  Sharp  v. 
Grey,  9  Bing.  457,  If  these  cases  do  uphold  the  doctrine  for 
which  they  are  cited,  they  are  certainly  so  much  in  conflict  with 
other  decided  cases,  that  they  can  not  be  viewed  in  the  light  of 
established  authorities.  But  we  think,  upon  an  examination  of 
them,  and  comparing  them  with  other  cases,  they  will  not  be 
found  so  clearly  to  sustain  the  position  of  the  plaintiff,  as  has 
been  argued.  It  must  be  borne  in  mind,  that  the  carrying  of 
passengers  for  hire,  in  coaches,  is  comparatively  a  modern  prac- 
tice ;  and  that  though  suits  occur  against  owners  of  coaches,  for 

580 


INGALLS  V.  BILLS.  §  152 

the  loss  of  goods,  as  early  as  the  time  of  Lord  Holt,  yet  the  first 
case  of  a  suit  to  recover  damages  by  a  passenger,  which  I  have 
noticed,  is  that  of  White  v.  Boulton,  Peak.  Cas.  113,  which  was 
tried  before  Lord  Kenyon  in  1791,  and  published  in  1795.  That 
was  an  action  against  the  proprietors  of  the  Chester  mail  coach 
for  the  negligence  of  the  driver,  by  reason  of  which  the  coach 
was  overturned,  and  the  plaintiff's  arm  broken,  and  in  which  he 
recovered  damages  for  the  injury;  and  Lord  Kenyon,  in  de- 
livering his  opinion,  said,  "when  these  [mail]  coaches  carried 
passengers,  the  proprietors  of  them  were  bound  to  carry  them 
safely  and  properly."  The  correctness  of  the  opinion  can  not 
be  doubted,  in  its  application  to  a  case  of  negligence.  The 
meaning  of  the  word  "safely,"  as  used  in  declarations  for  this 
species  of  injury,  is  given  hereafter. 

The  next  case  which  occurred  was  that  of  Aston  v.  Heaven,  2 
Esp.  533,  in  1797,  which  was  against  the  defendants,  as  pro- 
prietors of  the  Salisbury  stage-coach,  for  negligence  in  the  driv- 
ing of  their  coach,  in  consequence  of  which  it  was  overset  and 
the  plaintiff  injured.  This  action  was  tried  before  Eyre,  C.  J. 
It  was  contended  by  the  counsel  for  the  plaintiff,  that  coach- 
owners  were  liable  in  all  cases,  except  where  the  injury  hap- 
pens from  the  act  of  God  or  of  the  king's  enemies;  but  the 
learned  judge  held  that  cases  of  loss  of  goods  by  carriers  were 
totally  unlike  the  case  before  him.  In  those  cases,  the  parties 
are  protected  by  the  custom;  but  as  against  carriers  of  persons 
the  action  stands  alone  on  the  ground  of  negligence. 

The  next  case  was  that  of  Israel  v.  Clark,  4  Esp.  259,  in 
1803,  where  the  plaintiff  sought  to  recover  damages  for  an  in- 
jury arising  from  the  overturning  of  the  defendant's  coach,  in 
consequence  of  the  axle-tree  having  broken;  and  one  count  al- 
leged the  injury  to  have  arisen  from  the  overloading  of  the 
coach.  It  was  contended  that  if  the  owners  carried  more  pas- 
sengers than  they  were  allowed  by  act  of  parliament,  that  should 
be  deemed  such  an  overloading.  To  this  Lord  Ellenborough, 
who  tried  the  case,  assented,  and  said:  "If  they  carried  more 
than  the  statute  allowed,  they  were  liable  to  its  penalties;  but 
they  might  not  be  entitled  to  carry  so  many ;  it  depended  on  the 
strength  of  the  carriage.  They  were  bound  by  law  to  provide 
sufficient  carriages  for  the  safe  conveyance  of  the  public  who 
had  occasion  to  travel  by  them.  At  all  events,  he  would  expect 
a  clear  landworthiness  in  the  carriage  itself  to  be  established." 
This  is  one  of  the  cases  upon  which  the  present  plaintiff  spe- 
cially relies.  It  was  a  nisi  prius  case,  and  it  does  not  appear 
upon  which  count  the  jury  found  their  verdict.  But  the  point 
pending  in  the  present  case  was  neither  discussed  nor  started, 

581 


§  152  OF  CAKEIEKS  OF  PASSENGEES. 

viz.,  whether  the  accident  arose  from  the  negligence  of  the 
owner  in  not  providing  a  coach  of  sufficient  strength,  or  from 
a  secret  defect  not  discoverable  upon  the  most  careful  examina- 
tion. No  opinon  was  expressed  whether  the  action  rests  upon 
negligence  or  upon  an  implied  warranty.  But  it  was  stated 
that  the  defendants  were  bound  by  law  to  provide  sufficient  car- 
riages for  the  passage,  and,  at  all  events,  that  there  should  be  a 
clear  landworthiness  in  the  carriage  itself. 

The  general  position  is  not  denied  with  regard  to  the  duty  of 
an  owner  to  provide  safe  carriages.  The  duty,  however,  does 
not  in  itself  import  a  warranty.  The  judge  himself  may  have 
used  stronger  expressions,  in  the  terms  "landworthiness  in  the 
carriage,"  than  he  intended  by  the  thought  of  seaworthiness  in 
a  ship,  and  the  duty  of  ship-owners  in  that  respect.  If  the  sub- 
ject had  been  discussed,  and  the  distinctions  now  presented  had 
been  raised,  and  then  the  opinion  had  followed,  as  expressed  in 
the  report,  it  would  be  entitled  to  much  more  consideration  than 
the  mere  strength  of  the  words  now  impart  to  it. 

The  next  case  was  that  of  Christie  v.  Griggs,  2  Camp.  79,  in 
1809.  There  the  axle-tree  of  the  coach  snapped  asunder  at  a 
place  where  there  was  a  slight  descent  from  the  kennel  crossing 
the  road,  and  the  plaintiff  was  thrown  from  the  top  of  the 
coach.  Sir  James  Mansfield,  in  instructing  the  jury,  said :  "As 
the  driver  had  been  cleared  of  negligence,  the  question  for  the 
jury  was  as  to  the  sufficiency  of  the  coach.  If  the  axle-tree  was 
sound,  so  far  as  human  eye  could  discover,  the  defendant  was 
not  liable.  There  was  a  difference  between  a  contract  to  carry 
goods  and  a  contract  to  carry  passengers.  For  the  goods,  the 
carrier  was  answerable  at  all  events,  but  he  did  not  warrant  the 
safety  of  the  passengers.  His  undertaking  as  to  them  went  no 
further  than  this,  that,  as  far  as  human  care  and  foresight  could 
go,  he  would  provide  for  their  safe  conveyance.  Therefore,  if 
the  breaking  down  of  the  coach  was  purely  accidental,  the  plain- 
tiff' had  no  remedy  for  the  misfortune  he  had  encountered." 

The  case  of  Bremner  v.  Williams,  1  Car.  &  P.  414,  in  1824,  is 
relied  on  by  the  plaintiff.  There,  Best,  C.  J.,  said  he  consid- 
ered that  "every  coach  proprietor  warrants  to  the  public  that 
his  stage-coach  is  equal  to  the  journey  it  undertakes,  and  that  it 
is  his  duty  to  examine  it  previous  to  the  commencement  of  every 
journey."  And  so,  in  Crofts  v.  Waterhouse,  3  Bing.  321,  in 
1825,  Best,  C.  J.,  said:  "The  coachman  must  have  competent 
skill,  and  use  that  skill  with  diligence ;  he  must  be  well  acquainted 
wdth  the  road  he  undertakes  to  drive ;  he  must  be  provided  with 
steady  horses,  a  coach  and  harness  of  sufficient  strength,  and 
properly  made;  and  also  with  lights  by  night.     If  there  be  the 

582 


INGALLS  V.  BILLS.  §  152 

least  failure  in  any  one  of  these  things,  the  duty  of  the  coach 
proprietors  is  not  fulfilled,  and  they  are  answerable  for  any  in- 
jury or  damage  that  happens."  But  though  this  language  is 
strong,  and  would  apparently  import  a  warranty,  on  the  part  of 
the  stage  proprietor,  as  to  the  sufficiency  of  his  coach,  yet  Park, 
J.,  in  the  same  case  said,  "a  carrier  of  passengers  is  only  liable 
for  negligence. ' '  This  shows  that  the  court  did  not  mean  to  lay 
down  the  law,  that  a  stage  proprietor  is  in  fact  a  warrantor  of 
the  sufficiency  of  his  coach  and  its  equipments,  but  that  he  is 
bound  to  use  the  utmost  diligence  and  care  in  making  suitable 
provision  for  those  whom  he  carries;  and  we  think  such  a  con- 
struction is  warranted  by  the  language  of  the  same  learned 
judge  (Best)  in  the  case  of  Harris  v.  Costar,  1  Car,  &  P.  636,  in 
1825,  where  the  averment  in  the  declaration  was,  that  the  de- 
fendant undertook  to  carry  the  plaintiff  safely.  The  judge  held 
that  it  did  not  mean  that  the  coach  proprietor  undertook  to 
convey  safely  absolutely,  but  that  it  was  to  be  construed  like 
all  other  instruments,  taking  the  whole  together,  and  meant  that 
the  defendants  were  to  use  due  care. 

But  the  case  mainly  relied  upon  by  the  plaintiff  is  that  of 
Sharp  V.  Grey,  9  Bing.  457,  where  the  axle-tree  of  a  coach  was 
broken  and  the  plaintiff  injured.  There  the  axle  was  an  iron 
bar  inclosed  in  a  frame  of  wood  of  four  pieces,  secured  by 
clamps  of  iron.  The  coach  was  examined,  and  no  defect  was 
obvious  to  the  sight.  But  after  the  accident,  a  defect  was  found 
in  a  portion  of  the  iron  bar,  which  could  not  be  discovered 
without  taking  off  the  wood  work;  and  it  was  proved  that  it 
was  not  ^^sual  to  examine  the  iron  under  the  wood  work,  as  it 
vrould  rather  tend  to  insecurity  than  safety.  It  does  not  ap- 
pear by  the  statement,  that  the  defect  could  not  have  been  seen, 
on  taking  off  the  wood  work;  but  it  would  rather  seem  that  it 
might  have  been  discovered.  However  that  may  be,  the  lan- 
guage of  different  judges,  in  giving  their  opinions,  is  relied 
upon  as  maintaining  the  doctrines  contended  for  by  the  plain- 
tiff. Gaselee,  J.,  held  that  "the  burden  lay  on  the  defendant 
to  show  there  had  been  no  defect  in  the  construction  of  the 
coach."  Bosanquet,  J.,  said:  "The  chief  justice"  (who  tried 
the  case)  "held  that  the  defendant  was  bound  to  provide  a  safe 
vehicle,  and  the  accident  happened  from  a  defect  in  the  axle- 
tree.  If  so,  when  the  coach  started  it  was  not  roadworthy,  and 
the  defendant  is  liable  for  the  consequences,  upon  the  same 
principle  as  a  ship-owner  who  furnishes  a  vessel  which  is  not 
seaworthy."  And  Alderson,  J.,  said  he  was  of  the  same  opin- 
ion, and  that  "a  coach  proprietor  is  liable  for  all  defects  in  his 
vehicle,  which  can  be  seen  at  the  time  of  construction,  as  well 

583 


§  152  OF  CAEEIERS  OF  PASSENGEES. 

as  for  such  as  may  exist  afterwards,  and  be  discovered  on  inves- 
tigation. The  injury  in  the  present  case  appears  to  have  been 
occasioned  by  an  original  defect  of  construction;  and  if  the  de- 
fendant were  not  responsible,  a  coach  proprietor  might  buy  ill- 
constructed  or  unsafe  vehicles,  and  his  passengers  be  without 
remedy. ' ' 

This  case  goes  far  to  support  the  plaintiff  in  the  doctrine  con- 
tended for  by  his  counsel,  as  it  would  seem  to  place  the  case 
upon  the  ground  that  the  coach  proprietor  must,  at  all  events, 
provide  a  coach  absolutely  and  at  all  times  sufficient  for  the  jour- 
ney, and  that  he  is  a  warrantor  to  the  passenger  to  provide  such 
a  coach.  But  we  incline  to  believe  the  learned  judges  gave  too 
much  weight  to  the  comparison  of  Bosanquet,  J.,  viz.,  that  a 
coach  must  be  roadworthy  on  the  same  principle  that  a  ship 
must  be  seaworthy.  We  think  the  comparison  is  not  correct, 
and  that  the  analogy  applies  only  where  goods  are  carried,  and 
not  where  passengers  are  transported.  And  no  case  has  been 
cited,  where  a  passenger  has  sued  a  ship-owner  for  an  injury  aris- 
ing to  him  personally  in  not  conducting  him  in  a  seaworthy  ship. 
If  more  was  intended  by  the  learned  court,  than  that  a  coach 
proprietor  is  bound  to  use  the  greatest  care  and  diligence  in  pro- 
viding suitable  and  sufficient  coaches,  and  keeping  them  in  a  safe 
and  suitable  condition  for  use,  we  can  not  agree  with  them 
in  opinion.  To  give  their  language  the  meaning  contended  for 
in  the  argument  of  the  case  at  bar  is,  in  fact,  to  place  coach  pro- 
prietors in  the  same  predicament  with  common  carriers,  and  to 
make  them  responsible,  in  all  events,  for  the  safe  conduct  of  pas- 
sengers, so  far  as  the  vehicle  is  concerned.  But  that  the  case  of 
Sharp  V.  Gray  is  susceptible  of  being  placed  on  the  ground  which 
we  think  tenable,  namely,  that  negligence  and  not  warranty  lies 
at  the  foundation  of  actions  of  this  description,  may  be  inferred 
from  the  language  of  Mr.  Justice  Park,  who,  in  giving  his  opin- 
ion, says:  "This  was  entirely  a  question  of  fact.  It  is  clear 
that  there  was  a  defect  in  the  axle-tree ;  and  it  was  for  the  jury  to 
say  whether  the  accident  was  occasioned  by  what,  in  law,  is  called 
negligence  in  the  defendant,  or  not."  And  Tindal,  C.  J.,  who 
tried  the  cause  before  the  jury,  left  it  for  them  to  consider 
whether  there  had  been  that  vigilance  which  was  required  by  the 
defendant's  engagement  to  carry  the  plaintiff  safely;  thus  ap- 
parently putting  the  case  on  the  ground  of  negligence  and  not 
of  warranty.  See  also  Bretherton  v.  Wood,  3  Brod.  &  B.  54, 
6  Moore,  141 ;  Ansell  v.  Waterhouse,  6  Mau.  &  Sel.  385,  2  Chit.  1. 

The  same  question  has  arisen  in  this  country,  and  the  decis- 
ions exhibit  a  uniformity  of  opinion  that  coach  proprietors  are 
not  liable  as  common  carriers,  but  are  made  responsible  by  rea- 

584 


INGALLS  V.  BILLS.  §  152 

son  of  negligence.  In  the  case  of  Camden  and  Amboy  Railroad 
Co.  V.  Burke,  13  Wend.  626,  28  Am.  Dec.  488,  the  court  say 
that  the  proprietors  of  public  conveyances  are  liable  at  all  events 
for  the  baggage  of  passengers ;  but  as  to  injuries  to  their  persons, 
they  are  only  liable  for  the  want  of  such  care  and  diligence  as  is 
characteristic  of  cautious  persons.  And  in  considering  the  sub- 
ject again  in  the  case  of  Hollister  v.  Nowlen,  19  Id.  236,  32  Am. 
Dee.  455,  they  say,  that  "stage-coach  proprietors,  and  other 
carriers  by  laud  and  vs^ater,  incur  a  very  different  responsibility 
in  relation  to  the  passenger  and  his  baggage.  For  an  injury  to 
the  passenger,  they  are  answerable  only  where  there  has  been  a 
want  of  proper  care,  diligence,  or  skill;  but  in  relation  to  bag- 
gage, they  are  regarded  as  insurers,  and  must  answer  for  any 
loss  not  occasioned  by  inevitable  accident  or  the  public  enemies. ' ' 
In  a  case  which  occurred  in  respect  to  the  transportation  of 
slaves,  Boyce  v.  Anderson,  2  Pet.  155,  Chief  Justice  Marshall, 
in  giving  the  opinion  of  the  court,  says:  "The  law  applicable 
to  common  carriers  is  one  of  great  rigor.  Though  to  the  ex- 
tent to  which  it  has  been  carried,  and  in  cases  to  which  it  has 
been  applied,  we  admit  its  necessity  and  policy,  we  do  not  think 
it  ought  to  be  carried  further,  or  applied  to  new  cases.  "We 
think  it  has  not  been  applied  to  living  men,  and  that  it  ought 
not  to  be  applied  to  them."  So  in  the  case  of  Stokes  v.  Salton- 
stall,  13  Id.  181,  the  question  arose  and  was  thoroughly  dis- 
cussed; and  the  same  opinions  are  maintained  as  in  the  cases 
above  cited  from  Wendell.  And  the  whole  subject  is  examined 
by  Judge  Story,  in  his  treatise  on  bailments,  sees.  592-600,  with 
his  usual  learning ;  and  his  result  is  the  same. 

If  there  is  a  discrepancy  between  the  English  authorities 
which  have  been  cited,  we  think  the  opinions  expressed  by  Chief 
Justice  Eyre  and  Chief  Justice  Mansfield  are  most  consonant 
with  sound  reason,  as  applicable  to  a  branch  of  the  law  compar- 
atively new,  and,  though  given  at  7iisi  prius,  are  fully  sustained 
by  the  discussions  which  the  same  subject  has  undergone  in  the 
courts  of  our  own  country.  We  have  said,  as  being  most  con- 
sonant with  sound  reason,  or  good  common  sense,  as  applied  to 
so  practical  a  subject;  because,  if  such  a  warranty  were  imposed 
by  force  of  law  upon  the  proprietors  of  coaches  and  other  vehicles 
for  the  conveyance  of  passengers,  they  would  in  fact  become 
the  warrantors  of  the  work  of  others,  over  whom  they  have 
no  actual  control,  and — from  the  number  of  artisans  employed 
in  the  construction  of  the  materials  of  a  single  coach — ^whom 
they  could  not  follow.  Unless,  therefore,  by  the  application 
of  a  similar  rule,  every  workman  shall  be  held  as  the  warrantor, 
in  all  events,  of  the  strength,  sufficiency,  and  adaptation  of  his 

585 


§  152  OF  CAKKIEES  OF  PASSENGERS. 

own  manufactures  to  the  uses  designed — which,  in  a  community 
like  ours,  could  not  be  practically  enforced — the  warranty  would 
really  rest  on  the  persons  purchasing  the  article  for  use,  and 
not  upon  the  makers. 

If  it  should  be  said,  that  the  same  observations  might  be  ap- 
plied to  ship-owners,  the  answer  might  be  given,  that  they  have 
never  been  held  as  the  warrantors  of  the  safety  of  the  passen- 
gers whom  they  conveyed ;  and  as  to  the  transportation  of  goods, 
owners  of  general  ships  have  always  been  held  as  common  car- 
riers, for  the  same  reasons  that  carriers  on  land  are  bound  for 
the  safe  delivery  of  goods  intrusted  to  them.  But  as  it  respects 
the  seaworthiness  of  a  ship,  the  technical  rules  of  law  respecting 
it  have  been  so  repeatedly  examined,  and  the  facts  upon  which 
they  rest  so  often  investigated,  that  the  questions  which  arise  are 
those  of  fact  and  not  of  law,  and  in  a  vast  proportion  of  in- 
stances depend  upon  the  degree  of  diligence  and  care  which  are 
used  in  the  preservation  of  vessels,  and  practically  resolve  them- 
selves into  questions  of  negligence ;  so  that  the  evils  are  very  few 
that  arise  from  the  maintenance  of  the  doctrine  that  a  ship  must 
be  seaworthy  in  order  to  be  the  subject  of  insurance. 

The  result  to  which  we  have  arrived,  from  the  examination  of 
the  case  before  us,  is  this :  That  carriers  of  passengers  for  hire 
are  bound  to  use  the  utmost  care  and  diligence  in  the  providing 
of  safe,  sufficient,  and  suitable  coaches,  harnesses,  horses,  and 
coachmen,  in  order  to  prevent  those  injuries  which  human  care 
and  foresight  can  guard  against;  and  that  if  an  accident  hap- 
pens from  a  defect  in  the  coach,  w^hieh  might  have  been  discov- 
ered and  remedied  upon  the  most  careful  and  thorough  examina- 
tion of  the  coach,  such  accident  must  be  ascribed  to  negligence, 
for  which  the  owner  is  liable  in  case  of  injury  to  a  passenger, 
happening  by  reason  of  such  accident.  On  the  other  hand, 
where  the  accident  arises  from  a  hidden  and  internal  defect, 
which  a  careful  and  thorough  examination  would  not  disclose, 
and  which  could  not  be  guarded  against  by  the  exercise  of  a 
sound  judgment  and  the  most  vigilant  oversight,  then  the  pro- 
prietor is  not  liable  for  the  injury,  but  the  misfortune  must  be 
borne  by  the  sufferer,  as  one  of  that  class  of  injuries  for  which 
the  law  can  afford  no  redress  in  the  form  of  a  pecuniary  recom- 
pense. And  we  are  of  opinion  that  the  instructions,  which  the 
defendants'  counsel  requested  might  be  given  to  the  jury  in  the 
present  case,  were  correct  in  point  of  law,  and  that  the  learned 
judge  erred  in  extending  the  liability  of  the  defendants  further 
than  was  proposed  in  the  instructions  requested. 

The  point  arising  on  the  residue  of  the  instructions  was  not 
pressed  in  the  argument ;  and  we  see  no  reason  to  doubt  its  cor- 

586 


MEIEE  V.  PENNSYLVANIA  EAILROAD  CO.    §§  152,  153 

reotness,  provided  the  peril  to  which  the  plaintiff  was  exposed 
arose  from  a  defect  or  accident  for  which  the  defendants  were 
otherwise  liable :    Jones  v.  Boyce,  1  Stark,  493. 
New  trial  granted. 


153.     MEIER  V.  PENNSYLVANIA  RAILROAD  CO., 

64  Pa.  St.  225;  3  Am..  R.  581.    1870. 

Action  for  injuries  received  in  an  accident  caused  by  the  break- 
ing of  an  axle  on  the  sleeping  car  on  which  plaintiff  was  a  pas- 
senger. New  axles  had  been  provided  the  year  before  by  a  re- 
liable firm ;  they  were  of  good  quality  and  had  been  inspected 
twenty-two  miles  east  of  the  place  of  the  accident.  Verdict  for 
defendants  and  plaintiff  appealed. 

Agnew,  J.  It  is  agreed  on  all  hands,  says  Judge  Redfield,  in 
his  work  on  Railways,,  edition  of  1867,  p.  174,  that  carriers  of 
passengers  are  liable  only  for  negligence  either  proximate  or 
remote,  and  that  they  are  not  insurers  of  the  safety  of  their  pas- 
sengers, as  they  are  as  carriers  of  goods  and  baggage  of  passen- 
gers. The  numerous  cases  cited  from  which  this  result  is  drawn 
justify  this  statement.  Alden  v.  N.  Y.  Central  Railroad  Co.,  26 
N.  Y.  102,  82  Am.  D.  401,  holding  that  a  carrier  is  bound  abso- 
lutely to  provide  a  safe  vehicle,  irrespective  of  any  question  of 
negligence,  is  not  in  accord  with  the  American  cases  generally, 
or  the  modern  English  decisions.  It  is  reviewed  in  Readliead  v. 
Midland  Railroad  Co.,  2  Law  Rep.,  Q.  B.  412,  and  therein  said 
not  to  be  founded  in  good  reason.  See  the  cases  collected  in 
Shearman  &  Redfield  on  Negl.  (1869)  299,  §  267. 

The  language  of  Judge  Gibson,  taken  from  New  Jersey  R.  R, 
Co.  V.  Kennard,  21  Pa.  St.  204,  that  a  carrier  of  either  goods 
or  passengers  is  bound  to  provide  a  carriage  or  vehicle  perfect 
in  all  its  parts,  in  default  of  which  he  becomes  responsible  for  any 
loss  or  injury  that  may  be  suffered,  has  no  relation  to  the  ques- 
tion now  before  us.  The  case  he  was  considering  was  that  of 
a  car  made  without  guards  at  the  windows  to  prevent  the  arms 
of  passengers  being  thrust  out,  to  their  injury,  which  he  con- 
sidered a  defect  in  the  construction  of  the  car,  making  the  car- 
rier liable  for  negligence.  The  car  was  not  perfect  in  its  parts 
as  he  thought.  The  car  was  imperfect  in  construction,  and  there- 
fore not  adapted  to  the  end  to  be  attained,  to  wit,  security. 
It  may  not  be  amiss  to  say  that  this  opinion  of  the  chief  jus- 
tice as  to  window  guards,  was  not  sustained  by  the  court  in 

587 


§  153  OF  CAEEIEES  OF  PASSENGEES. 

banc,  and  has  since  been  overruled  in  Pittsburg  &  Connellsviile 
Railroad  Co.  v.  McClurg,  56  Pa.  St.  294.  The  doctrine  we 
are  now  asked  to  sustain  is,  that  though  the  car  is  perfect  in 
all  its  parts,  if  imperfect  from  some  latent  and  undiscoverable 
defect,  which  the  utmost  skill  and  care  could  neither  perceive 
nor  provide  against,  the  railway  company  must  still  be  held 
responsible  for  injury  to  passengers,  on  the  ground  of  an  abso- 
lute liability  for  every  defect.  The  plaintiff  in  error  in  effect 
contends  that  the  defendants  were  warrantors  against  every  acci- 
dent, but  even  in  the  case  referred  to,  Judge  Gibson  denied  this 
rule.  He  said  of  the  carrier,  he  is  bound  to  guard  him  (the 
passenger)  from  every  danger  which  extreme  vigilance  can  pre- 
vent. This  expresses  the  true  measure  of  responsibility.  He 
answered  a  point  in  these  words:  "That  the  company  is  re- 
sponsible only  for  defects  discoverable  by  a  careful  man  after 
a  careful  examination  and  exercise  of  sound  judgment. ' '  Thus : 
"This  is  true,  but  were  there  such  an  examination  and  exer- 
cise of  judgment?  The  defective  construction  of  the  car  must 
have  been  obvious  to  the  dullest  perception,"  etc.  The  same 
rule  was  laid  down  in  Laing  v.  Colder,  8  Pa.  St.  482,  49  Am.  D. 
533.  Judge  Bell  says,  it  is  long  since  settled  that  the  common- 
law  responsibilities  of  carriers  of  goods  for  hire  do  not  as  a  whole 
extend  to  carriers  of  passengers.  The  latter  are  not  insurers 
against  all  accidents.  But  though  (he  says)  in  legal  contem- 
plation they  do  not  warrant  the  absolute  safety  of  their  passen- 
gers, they  are  bound  to  the  exercise  of  the  utmost  degree  of 
diligence  and  care.  The  slightest  neglect  against  which  human 
prudence  and  foresight  may  giTard,  and  by  which  hurt  or  loss 
is  occasioned,  will  render  them  liable  in  damages.  The  same 
doctrine  will  be  found  in  substance  in  R.  R.  Co.  v.  Aspell,  23 
Pa.  St.  149,  62  Am.  D.  323,  and  Sullivan  v.  The  Philadelphia 
&  Reading  Co.,  30  Pa.  St.  234,  and  in  other  cases.  In  all  the 
Pennsylvania  cases,  it  will  be  found  that  negligence  is  the  ground 
of  liability  on  the  part  of  a  carrier  of  passengers.  Absolute 
liability  reqiiires  absolute  perfection  in  machinery  in  all  re- 
spects, which  is  impossible. 

The  utmost  which  human  knowledge,  human  skill  and  human 
foresight  and  care  can  provide  is  all  that  in  reason  can  be  re- 
quired. To  ask  more  is  to  prohibit  the  running  of  railways, 
"unless  they  possess  a  capital  and  surplus  which  will  enable  them 
to  add  a  new  element  to  their  business,  that  of  insurance.  Nor 
can  we  carry  the  requirements  beyond  the  use  of  known  ma- 
chinery and  modes  of  using  it.  Railroads  must  keep  pace  with 
science  and  art  and  modern  improvement,  in  their  application 
to  the  carriage  of  passengers,  but  are  not  responsible  for  the  un- 

588 


COMMONWEALTH  v.  B.  &  MAINE  K.  E.  CO.     §§  153,  154 

known  as  well  as  the  new.  The  rule  laid  down  by  the  learned 
judge,  in  the  language  quoted  in  the  second  assignment  of  error, 
is  a  correct  summary  of  the  law.  The  rule  of  responsibility 
differs  from  the  rule  of  evidence.  Prima  facie,  where  a  passen- 
ger, being  carried  on  a  train,  is  injured  without  fault  of  his  own, 
there  is  a  legal  presumption  of  negligence,  casting  upon  the 
carrier  the  onus  of  disproving  it.  Laing  v.  Colder,  8  Pa.  St.  482, 
49  Am.  D.  533;  Sullivan  v.  Philadelphia  &  Reading  Railroad 
Co.,  30  Pa.  St.  234;  Shearman  &  Redfield  on  Negl.,  §  280;  Red- 
field  on  Railways,  §  1760,  and  notes.  This  is  the  rule  when  the 
injury  is  caused  by  a  defect  in  the  road,  cars,  or  machinery, 
or  by  a  want  of  diligence  or  care  in  those  employed,  or  by  any 
other  thing  which  the  company  can  and  ought  to  control  as  a 
part  of  its  duty,  to  carry  the  passengers  safely;  but  this  rule 
of  evidence  is  not  conclusive.  The  carrier  may  rebut  the  pre- 
sumption and  relieve  himself  from  responsibility  by  showing 
that  the  injury  arose  from  an  accident  which  the  utmost  skill, 
foresight  and  diligence  could  not  prevent. 

"We  think  none   of  the   errors   assigned   are   sustained,    and 
the  judgment  is  therefore  affirmed. 


154.     COMMONWEALTH    V.    BOSTON    &    MAINE    RAIL- 
ROAD CO., 

129  Mass.  500;  37  Am.  R.  382.    1880. 

Conviction  under  a  statute  of  causing  the  death  of  a  passen- 
ger. 

SouLE,  J.  It  is  contended  on  the  part  of  the  government,  that 
where  the  person  killed  was  a  passenger,  the  statute  does  not  re- 
quire, in  order  to  the  maintenance  of  an  indictment,  that  he 
should  have  been  using  due  care.  But  whether  this  is  so  or  not 
need  not  be  decided,  because,  in  the  opinion  of  a  majority  of 
the  court,  when  Hill  was  killed  he  was  not  a  passenger  within 
the  meaning  of  the  statute. 

It  is  undoubtedly  true  that  one  who  has  bought  a  ticket,  or 
otherwise  become  entitled  to  transportation  on  a  particular  train 
of  cars  of  a  railroad  corporation,  is  ordinarily  a  passenger  of 
the  corporation  from  the  time  when  he  reasonably  and  properly 
starts  from  the  ticket  office  or  waiting  room  in  the  station  to  take 
his  seat  in  a  car  of  the  train,  till  he  has  reached  the  station  to 
which  he  is  entitled  to  be  carried,  and  has  had  an  opportunity, 
by  safe  and  convenient  means,  to  leave  the  train  and  roadway 
of  the  corporation  at  that  station.    Warren  v.  Fitchburg  Rail- 

5S9 


§  154  OF  CAERIEES  OF  I ASSENGERS. 

road,  8  Allen,  227,  85  Am.  D.  700.  The  duty  of  the  corporation 
toward  him  is  to  furnish  a  well-constructed  and  safe  road,  suit- 
able engine  and  cars,  competent  and  careful  enginemen,  con- 
ductors and  other  necessary  laborers,  in  order  that  all  injuries 
which  human  foresight  can  guard  against  may  be  prevented. 
But  this  duty  rests  on  the  corporation  only  so  long  as  the  pas- 
senger sees  fit  to  be  carried  by  it ;  and  if  he  chooses  to  abandon 
his  journey  at  any  point  before  reaching  the  place  to  which  he 
is  entitled  to  be  carried,  the  corporation  ceases  to  be  under  any 
obligation  to  provide  him  with  the  means  of  traveling  further. 
And  while  it  is  true,  that  if  he  leaves  the  train  while  it  is  at 
rest  at  a  station,  he  is  entitled  to  an  opportunity  so  to  do  in 
safety,  it  is  equally  true  that  the  corporation  is  not  under  any 
obligation  to  make  it  safe  for  him  to  leave  the  train  while  it  is  in 
motion,  and  that  if  he  does  so,  he  assumes  all  risk  of  injury. 
Gavett  V.  Manchester  &  Lawrence  Railroad,  16  Gray,  501,  77 
Am.  D.  422.  It  would  not  be  contended  by  any  one  that  an 
indictment  under  the  statute  could  be  maintained  against  a  rail- 
road corporation  for  causing  the  death  of  one  who  without  look- 
ing to  see  if  the  track  was  clear,  jumped  from  a  train  which 
was  running  at  ordinary  speed  between  stations,  and  was  imme- 
diately afterward  killed  by  the  engine  of  a  train  going  in  the 
opposite  direction  on  another  track.  The  indictment  would 
fail  because  the  facts  showed  that  the  corporation  owed  no  duty 
to  the  deceased.  He  would  have  ceased  to  be  a  passenger,  by 
voluntarily  leaving  the  train  at  a  place  and  time  when  and 
where  the  corporation  could  not  anticipate  that  he  would  leave 
it,  and  when  and  where  the  corporation  was  under  no  obliga- 
tion to  see  that  he  had  an  opportunity  to  leave  its  roadway  in 
safety  after  leaving  the  train.  He  would  have  become  an  in- 
truder on  the  track  of  the  corporation,  acting  without  any  regard 
to  the  dangerous  character  of  the  situation,  and  not  entitled  to 
protection  against  the  consequences  of  his  own  negligence.  The 
principle  involved  in  the  supposed  case  is  involved  in  and  governs 
the  case  at  bar. 

So  long  as  the  train  was  in  motion,  Hill  could  not  leave  it  and 
still  retain  his  right  to  protection  till  he  had  left  the  roadway  of 
the  corporation.  By  leaving  the  train  while  in  motion,  he  ceased 
to  be  a  passenger,  and  to  have  the  rights  of  a  passenger,  as  com- 
pletely, though  the  train  was  moving  slowly,  and  was  near  by 
the  station,  as  if  he  had  left  it  while  moving  at  full  speed  be- 
tween stations.  Hickey  v.  Boston  &  Lowell  Railroad,  14  Allen, 
429.  The  fact  that  the  car  in  which  Hill  was  had  passed  the 
platform  of  the  station  to  which  he  was  entitled  to  be  carried 
did  not  give  him  the  right  to  leave  the  train  at  the  risk  of  the 

590 


CHEISTIE  V.  GEIGGS.  §§  154,  155 

company.  If  he  sustained  any  injury  by  being  carried  beyond 
the  station,  his  remedy  would  be  by  an  action,  counting  on  that 
injury-. 

Hill,  having  ceased  to  be  a  passenger,  was  on  the  track  of  the 
defendant's  road  under  circumstances  which  preclude  the  idea 
that  he  was  in  the  exercise  of  due  care.  The  evidence  on  this 
point  is  all  in  one  direction,  and  it  is  to  the  effect,  that  if  he  had 
looked,  he  could  not  have  failed  to  see  that  the  approaching  train 
on  the  other  track  was  so  near  that  he  could  not  cross  the  track 
before  it  would  strike  him. 

It  follows  that  the  defendant  was  right  in  asking  the  ruling 
that  there  was  no  sufficient  evidence  to  support  either  count  of 
the  indictment.  There  was  no  evidence  to  support  the  counts 
in  which  Hill  is  alleged  to  have  been  a  passenger,  because  by 
his  voluntary  act  he  had  ceased  to  be  a  passenger,  or  to  be  en- 
titled to  protection  as  a  passenger.  There  was  no  evidence  to 
support  the  counts  in  which  he  is  alleged  not  to  have  been  a 
passenger,  because  there  was  no  evidence  that  he  was  in  the 
exercise  of  due  care. 

Exceptions  sustained. 


155.     CHRISTIE  V.  GRIGGS, 
2  Campbell  79.    1809. 

This  was  an  action  of  assumpsit  against  the  defendant  as 
owner  of  the  Blackwall  Stage,  on  which  the  plaintiff,  a  pilot, 
was  traveling  to  London,  when  it  broke  down,  and  he  was  greatly 
bruised.  The  first  count  imputed  the  accident  to  the  negligence 
of  the  driver;  the  second,  to  the  insufficiency  of  the  carriage. 

The  plaintiff  having  proved  that  the  axle-tree  snapped  asun- 
der at  a  place  where  there  is  a  slight  descent,  from  the  kennel 
crossing  the  road ;  that  he  was,  in  consequence,  precipitated  from 
the  top  of  the  coach;  and  that  the  bruises  he  received  confined 
him  several  weeks  to  his  bed — there  rested  his  case. 

Best,  Serjeant,  contended  strenuously  that  the  plaintiff  was 
bound  to  proceed  farther,  and  give  evidence,  either  of  the  driver 
being  unskilful,  or  of  the  coach  being  insufficient. 

Sir  James  Mansfield,  C.  J.  I  think  the  plaintiff  has  made 
a  prima  facie  case  by  proving  his  going  on  the  coach,  the  acci- 
dent, and  the  damage  he  has  suffiered.  It  now  lies  on  the  other 
side  to  shew,  that  the  coach  was  as  good  a  coach  as  could  be 
made,  and  that  the  driver  was  as  skilful  a  driver  as  could  any 
where  be  found.    What  other  evidence  can  the  plaintiff  give? 

591 


§§  155,  156  OF  CAEEIEES  OF  PASSENGEES. 

The  passengers  were  probably  all  sailors  like  himself;  and  how 
do  they  know  whether  the  coach  was  well  built,  or  whether  the 
coachman  drove  skilfully?  In  many  other  cases  of  this  sort, 
it  must  be  equally  impossible  for  the  plaintiff  to  give  the  evi- 
dence required.  But  when  the  breaking  down  or  overturning 
of  a  coach  is  proved,  negligence  on  the  part  of  the  owner  is 
implied.  He  has  always  the  means  to  rebut  this  presumption,  if 
it  be  unfounded;  and  it  is  now  incumbent  on  the  defendant  to 
make  out,  that  the  damage  in  this  case  arose  from  what  the  law 
considers  a  mere  accident. 

The  defendant  then  called  several  witnesses,  who  swore  that 
the  axle-tree  had  been  examined  a  few  days  before  it  broke, 
without  any  flaw  bing  discovered  in  it;  and  that  when  the  acci- 
dent happened,  the  coachman,  a  very  skilful  driver,  was  driving 
in  the  usual  track,  and  at  a  moderate  pace. 

Sir  James  Mansfield  said,  as  the  driver  had  been  cleared 
of  every  thing  like  negligence,  the  question  for  the  jury  would 
be — as  to  the  sufficiency  of  the  coach.  If  the  axle-tree  was  sound 
as  far  as  human  eye  could  discover,  the  defendant  was  not 
liable.  There  was  a  difference  between  a  contract  to  carry 
goods,  and  a  contract  to  carry  passengers.  For  the  goods  the 
carrier  was  answerable  at  all  events.  But  he  did  not  warrant 
the  safety  of  the  passengers.  His  undertaking,  as  to  them,  went 
no  farther  than  this,  that  as  far  as  human  care  and  foresight 
could  go,  he  would  provide  for  their  safe  conveyance.  Therefore, 
if  the  breaking  down  of  the  coach  was  purely  accidental,  the 
plaintiff  had  no  remedy  for  the  misfortune  he  had  encountered. 

The  jury  found  a  verdict  for  the  defendant. 


156.    JAMMISON  V.  CHESAPEAKE  AND  OHIO  RAILWAY 

CO., 

92  Va.  327;  23  S.  E.  B.  758;  53  Am.  St.  B.  813.    1895. 

Action  by  an  infant  by  her  next  friend  for  damages  for  in- 
juries received  from  falling  from  a  train.  The  train  slowed  to 
eight  miles  per  hour  as  it  approached  her  station,  but  did  not 
stop.  Plaintiff  went  out  of  the  car  seeking  the  conductor,  and  as 
she  reached  the  platform  she  was  thrown  from  the  train  by 
reason  of  a  jerking  motion  due  to  an  acceleration  of  speed  as 
the  train  rounded  a  curve.  Verdict  for  $3,000,  subject  to  de- 
fendant 's  demurrer  to  the  evidence.  Demurrer  sustained.  Upon 
an  order  dismissing  the  suit  of  plaintiff  a  writ  of  error  was  se- 
cured. 

592 


JAMMISON    V.    C.   AND    0.    EY.    CO.  §  156 

Keith,  P.  (After  stating  the  facts.)  Without  doubt,  the 
defendant  in  error  was  guilty  of  negligence  in  failing  to  stop 
the  train  at  Ewell  's  station.  For  whatever  loss  or  inconvenience 
plaintiff  may  have  sustained  by  reason  of  this  neglect  upon  the 
part  of  the  defendant  in  error,  she  had  an  ample  remedy,  and 
would  have  been  entitled  to  full  compensation  in  damages.  The 
injury,  however,  for  which  she  sues  is  not  the  loss  or  inconven- 
ience consequent  upon  that  act,  but  for  the  damage  she  suf- 
fered by  falling  from  the  train,  and  the  injuries  she  then  sus- 
tained. The  failure  of  the  defendant  in  error  to  stop  its  train  at 
E well's  station  was  not  the  proximate  cause  of  the  injury  for 
which  the  suit  was  brought,  but,  on  the  contrary,  her  injury 
was  directly  attributable  to  causes  wholly  independent  of  that 
act  of  negligence.  Had  she  retained  her  seat  she  would  have 
been  safe,  and,  leaving  the  train  at  the  next  station,  could  have 
maintained  an  action  for  whatever  loss  or  injury  had  been  in- 
flicted upon  her.  Instead  of  so  doing,  upon  the  advice  of  a 
fellow-passenger,  she,  after  encumbering  herself  with  bundles 
under  each  arm,  passed  out  upon  the  platform,  knowing,  as  she 
must  or  ought  to  have  known,  that  the  speed  of  the  train  was 
being  accelerated;  that  the  platform  was  in  a  position  of  dan- 
ger, and  there,  "by  a  jerk,"  incident  to  the  increase  of  speed 
from  the  slow  rate  at  which  the  train  had  been  moving  when 
it  passed  the  station,  she  was  thrown  from  the  platform,  and  in- 
jured. 

Not  only  did  her  negligent  conduct  so  far  contribute  to  the 
accident  as  to  preclude  a  recovery  on  her  part,  even  though  the 
evidence  disclosed  negligence  upon  the  part  of  the  company,  but 
I  am  at  a  loss  to  discover  in  the  record  of  this  case  any  evidence 
whatever  of  negligence  upon  the  part  of  the  company,  save  and 
except  its  failure  to  halt  its  train  at  Ewell 's  station;  but  that 
act,  as  we  have  seen,  was  the  remote  and  not  the  proximate  cause 
of  the  injury,  and  cannot  be  taken  into  consideration  as  consti- 
tuting an  element  of  decision  in  this  case. 

Railroad  corporations  owe  a  high  degree  of  duty  to  their  pas- 
sengers. They  must  do  all  for  their  safety  that  human  skill 
and  foresight  may  suggest,  and  are  responsible  for  any,  even  the 
slightest,  neglect ;  but  that  the  passenger  may  hold  the  company 
to  this  high  degree  of  responsibility,  it  is  incumbent  upon  him  to 
occupy  the  position  upon  the  train  assigned  to  passengers,  and  if 
he  voluntarily  assumes  a  position  of  peril,  and  injury  results 
from  it,  he  cannot  recover. 

In  this  case  the  plaintiff  in  error  voluntarily  placed  herself  in 
a  position  of  peril,  without  justification  or  excuse,  when,  encum- 

38  593 


§  §  156,  157  OF  CAKEIEES  OF  PASSENGEES. 

bered  with  bundles  v.diich  incapacitated  her  for  self-protection, 
she  walked  out  upon  the  platform  of  a  moving  train. 

The  principles  relied  upon  in  this  opinion  have  been  so  fully 
and  so  frequently  enforced  by  the  decisions  of  this  court  that 
they  may  be  considered  as  established  law :  See  Farish  v.  Reigle, 
11  Graft.  697,  62  Am.  Dec.  666 ;  Richmond  etc.  R.  R.  Co.  v.  Mor- 
ris, 31  Graft.  200;  Richmond  etc.  R.  R.  Co.  v.  Anderson,  31 
Graft.  812,  31  Am.  Rep.  750;  Dun  v.  Seaboard  etc.  R.  R.  Co., 
78  Ya.  645,  49  Am.  Rep.  388.     .     .     . 

Judgment  affirmed. 


157.  DODGE  V.  BOSTON  AND  BANGOR  STEAMSHIP 

CO., 

148  Mass.  207;  19  N.  E.  R.  373;  12  Am.  St.  R.  541.    1889. 

Tort  to  recover  damages  for  personal  injuries  received  while 
landing  from  defendant's  steamer.  Plaintiff  was  a  passenger 
from  Boston  to  Camden,  and  at  Rockland  left  the  steamer  by  a 
small  plank  provided  for  the  use  of  employees  only.  He  wished 
to  secure  breakfast  at  a  restaurant  on  the  wharf.  Meals  were 
served  to  those  who  paid  for  them  on  the  boat. 

Knowlton,  J.  This  case  presents  an  important  question  as 
to  the  rights  and  duties  of  passengers  and  common  carriers  in 
reference  to  egress  from  and  ingress  to  the  vehicle  of  trans- 
portation at  intermediate  points  upon  a  journey.  Wlien  one 
has  made  a  contract  for  passage  upon  a  vehicle  of  a  common 
carrier,  and  has  presented  himself  at  the  proper  place  to  be 
transported,  his  right  to  care  and  protection  begins,  and  ordi- 
narily it  continues  until  he  has  arrived  at  his  destination,  and 
reached  the  point  where  the  carrier  is  accustomed  to  receive 
and  discharge  passengers.  So  long  as  he  stands  strictly  in 
this  relation  of  a  passenger,  the  carrier  is  held  to  the  highest 
degree  of  care  for  his  safety.  While  he  is  upon  the  premises 
of  the  carrier,  before  he  has  reached  the  place  designed  for  use 
by  passengers  waiting  to  be  carried,  or  put  himself  in  readiness 
for  the  performance  of  the  contract,  the  carrier  owes  him  the 
duty  of  ordinary  care,  as  he  is  a  person  rightfully  there  by  in- 
vitation. It  has  sometimes  been  said  that  a  passenger  at  the 
end  of  his  journey  retains  the  same  relation  to  the  carrier  until 
he  has  left  the  carrier's  premises.  But  there  are  other  cases 
which  indicate  that  the  contract  of  carriage  is  performed  when 
the  passenger  at  the  end  of  his  journey  has  reached  a  safe  and 

594 


DODGE  V.  B.  AND  B.  STEAMSHIP  CO.  §  157 

proper  place,  where  persons  seeking  to  become  passengers  are 
regularly  received,  and  passengers  are  regularly  discharged, 
and  that  the  degree  of  care  to  Vhich  he  is  then  entitled  is  less 
than  during  the  continuance  of  his  contract,  as  a  carrier  of 
goods  is  held  to  a  liability  less  strict  after  they  have  reached 
their  destination  and  been  put  in  a  freight-house  than  while 
they  are  in  transit. 

There  is  sometimes  occasion  to  leave  the  boat,  or  car,  or  car- 
riage, and  return  to  it  again  before  the  contract  is  fully  per- 
formed ;  and  it  is  necessary  to  determine  what  are  the  rights  and 
duties  of  the  parties  at  such  a  time.  Wlienever  performance 
of  the  contract  in  a  usual  and  proper  way  necessarily  involves 
leaving  a  vehicle  and  returning  to  it,  a  passenger  is  entitled  to 
protection  as  such,  as  well  while  so  leaving  and  returning  as  at 
any  other  time  j  and  this  has  been  held  in  cases  where,  in  accord- 
ance with  arrangements  of  the  railroad  companies,  passengers 
by  railway  left  their  train  to  obtain  refreshments:  Peniston 
V.  Chicago  etc.  R.  R.,  34  La.  Ann.  777,  44  Am.  R.  444;  Jefferson- 
ville  etc.  R.  R.  v.  Riley,  39  Ind.  568.  So  where  a  railroad  com- 
pany undertakes  to  carry  a  passenger  a  long  distance  upon  its 
line,  and  sells  him  a  ticket  upon  which  he  may  stop  at  interme- 
diate stations,  in  getting  on  and  off  the  train  at  any  station 
where  he  chooses  to  stop,  he  has  the  rights  of  a  passenger.  Of 
course,  during  the  interval  between  his  departure  from  the  sta- 
tion and  his  return  to  it  to  resume  his  journey,  he  is  not  a  pas- 
senger. 

To  determine  the  rights  of  the  parties  in  every  case,  the  ques- 
tion to  be  answered  is.  What  shall  they  be  deemed  to  have  con- 
templated by  their  contract?  The  passenger,  without  losing 
his  rights  while  he  is  in  those  places  to  which  the  carrier's  care 
should  extend,  may  do  whatever  is  naturally  and  ordinarily 
incidental  to  his  passage.  If  there  are  telegraph  offices  at  sta- 
tions along  a  railroad,  and  the  carrier  furnishes  in  its  cars 
blanks  upon  which  to  write  telegraphic  messages,  and  stops  its 
trains  at  stations  long  enough  to  enable  passengers  conveniently 
to  send  such  messages,  a  purchaser  of  a  ticket  over  a  railroad 
has  a  right  to  suppose  that  his  contract  permits  him  to  leave 
his  car  at  a  station  for  the  purpose  of  sending  a  telegraphic 
message;  and  he  has  the  rights  of  a  passenger  while  alighting 
from  the  train  for  that  purpose,  and  while  getting  upon  it  to 
resume  his  journey.  So  of  one  who  leaves  a  train  to  obtain 
refreshment,  where  it  is  reasonable  and  proper  for  him  so  to  do, 
and  is  consistent  with  the  safe  continuance  of  his  jour- 
ney in  a  usual  way.  Where  one  engages  transportation  for 
himself  by  a  conveyance  which  stops  from  time  to  time  along 

595 


§  157  OF  CAKRIEES  OF  PASSENGERS. 

his  route,  it  may  well  be  implied,  in  the  absence  of  anything  to 
the  contrary,  that  he  has  permission  to  alight  for  his  own  con- 
venience at  any  regular  stopping-place  for  passengers,  so  long  as 
he  properly  regards  all  the  carrier's  rules  and  regulations,  and 
provided  that  his  doing  so  does  not  interfere  with  the  carrier 
in  the  performance  of  his  duties. 

In  the  case  of  Keokuk  Northern  Line  Packet  Co.  v.  True,  88 
111.  608,  a  plaintiff  before  reaching  his  destination  was  going 
ashore  for  his  own  convenience  at  a  place  where  the  boat 
stopped  for  two  hours,  and  was  injured  on  the  gangway  plank. 
It  was  held  that  he  was  to  be  treated  as  a  passenger,  and  that 
the  defendant  was  bound  to  use  the  utmost  care  for  his  safety. 
See  also  Clussman  v.  Long  Island  R.  R.,  9  Hun,  618,  affirmed 
in  73  N.  Y.  606;  Hrebrik  v.  Carr,  29  Fed.  Rep.  298;  Dice  v. 
Willamette  Transportation  and  Locks  Co.,  8  Or.  60,  34  Am.  R. 
575.  In  the  first  of  these  cases,  the  defendant  was  held  liable 
for  a  defect  in  a  platform  of  its  station  to  a  passenger  who 
had  left  the  train  to  send  a  telegraphic  message ;  but  the  court 
did  not  decide  whether  the  plaintiff  had  the  rights  of  a  pas- 
senger at  the  time  of  his  injury,  or  merely  those  of  a  person 
there  by  invitation.  In  the  second,  a  passenger  who  had  taken 
his  place  on  board  a  steamship  started  to  go  on  shore  to  buy 
some  tobacco,  and  fell  from  an  unsafe  plank,  and  was  drowned. 
He  was  held  to  have  had  the  rights  of  a  passenger,  and  his 
administrator  was  permitted  to  recover. 

No  decision  has  been  cited  that  conflicts  with  our  views.  In 
State  V.  Grand  Trunk  R'y,  58  Me.  176,  4  Am.  R.  258,  the 
circumstances  under  which  the  passenger  left  the  train  and  re- 
mained away  from  it  were  such  that,  applying  the  principles 
we  have  enunciated,  he  was  not  a  passenger  at  the  time  he  was 
killed.  The  court,  in  that  case,  was  not  called  upon  to  consider 
at  what  point  a  passenger  leaving  a  car  under  different  cir- 
cumstances would  cease  to  be  such,  and  at  what  point  he  would 
resume  his  former  relation. 

Upon  the  undisputed  facts  of  the  case  at  bar,  we  are  of  opin- 
ion that  the  plaintiff,  as  a  passenger,  could  properly  go  on 
shore  to  get  his  breakfast  at  Rockland,  and  that  he  had  a  pas- 
senger's right  to  protection  during  his  egress  from  the  steamer. 
The  first  seven  of  the  defendant's  requests  for  instructions  were 
rightly  refused. 

The  defendant's  tenth  request  was  for  an  instruction  that  if 
the  plaintiff  was  justified  in  leaving  the  steamer  as  he  did,  the 
"defendant  did  not  owe  him  so  high  a  degree  of  care  after  he 
had  left  the  steamer  and  was  out  upon  the  slip  as  it  owed  him 
while  he  remained  upon  or  within  the  steamer,"     This  request 

596 


DODGE  V.  B.  AND  B,  STEAMSHIP  CO.  §  157 

referred  to  the  degree  of  care  which  the  law  requires  of  carriers 
of  passengers,  as  distinguished  from  the  ordinary  care  required 
of  men  in  their  common  relations  to  each  other.  Because  a 
passenger's  life  and  safety  are  necessarily  intrusted,  in  a  great 
degree,  to  the  care  of  the  carrier  who  transports  him,  the  law 
deems  it  reasonable  that  the  carrier  should  be  bound  to  exer- 
cise the  utmost  care  and  diligence  in  providing  against  those 
injuries  which  human  care  and  foresight  can  guard  against. 
This  rule  is  held  not  only  in  our  own  state  and  in  England, 
but  all  over  the  United  States.  It  applies  not  only  to  carriers 
who  use  steam  railroads,  but  to  those  who  use  horse  railroads, 
stage-coaches,  steamboats,  and  sailing-vessels.  It  applies  at  all 
times  when,  and  in  all  places  where,  the  parties  are  in  the  rela- 
tion to  each  other  of  passenger  and  carrier;  and  it  includes  at- 
tention to  all  matters  which  pertain  to  the  business  of  carrying 
the  passenger. 

In  Readhead  v.  Midland  R'y,  L-  R-  2  Q.  B.  412,  it  is  said 
that  a  "carrier  of  passengers  for  hire  was  bound  to  use  the 
utmost  care,  skill  and  diligence  in  everything  that  concerned 
the  safety  of  passengers."  In  R.  R.  Co.  v.  Aspell,  23  Pa.  St.  147, 
62  Am.  D.  323,  carriers  of  passengers  are  said  to  be  responsible  for 
"any  species  of  negligence,  however  slight,  which  they  or  their 
agents  may  be  guilty  of."  In  "Warren  v.  Fitchburg  R.  R.,  8 
Allen  (Mass.)  227,  85  Am.  D.  700,  the  principle  was  applied  to 
providing  for  a  passenger  a  safe  and  convenient  way  and  man- 
ner of  access  to  the  train.  In  Simmons  v.  New  Bedford  etc. 
Steamboat  Co.,  97  Mass.  361,  93  Am.  D.  99,  it  was  applied  to 
the  duty  of  a  carrier  to  protect  passengers  from  the  misconduct 
or  negligence  of  other  passengers. 

Gaynor  v.  Old  Colony  etc.  R'y,  100  Mass.  208,  97  Am.  D. 
96,  was  a  case  where  it  appeared  that  the  defendant  did  not 
provide  proper  safeguards  against  injury  for  a  passenger  leav- 
ing the  place  where  he  alighted  from  the  cars.  Mr.  Justice  Colt 
said  in  the  opinion:  "The  plaintiff  was  a  passenger,  and  while 
that  relation  existed,  the  defendants  were  bound  to  exercise 
towards  him  the  utmost  care  and  diligence  in  providing  against 
those  injuries  which  can  be  avoided  by  human  foresight.  He 
was  entitled  to  this  protection,  so  long  as  he  conformed  to 
the  reasonable  regulations  of  the  company,  not  only  while  in 
the  cars,  but  while  upon  the  premises  of  the  defendants;  and 
this  requires  of  the  defendants  due  regard  for  the  safety  of  pas- 
sengers, as  well  in  the  location,  construction,  and  arrangement 
of  their  station  buildings,  platforms,  and  means  of  egress  as  in 
their   previous  transportation."     See   also  language   of   Chief 

597 


§  157  OF  CAEKIEES  OF  PASSENGEES. 

Justice  Shaw,  in  McElroy  v.  Nashua  etc.  R.  R.,  4  Cush.  (Mass.) 
400,  50  Am.  D.  794. 

Difficulty  in  the  application  of  this  rule  has  sometimes  come 
from  an  improper  interpretation  of  the  expressions,  "utmost 
care  and  diligence,"  "most  exact  care,"  and  the  like.  These 
do  not  mean  the  utmost  care  and  diligence  which  men  are 
capable  of  exercising.  They  mean  the  utmost  care  consistent 
with  the  nature  of  the  carrier's  undertaking,  and  with  a  due 
regard  for  all  the  other  matters  which  ought  to  be  considered 
in  conducting  the  business.  Among  these,  are  the  speed  which 
is  desirable,  the  prices  which  passengers  can  afford  to  pay,  the 
necessary  cost  of  different  devices  and  provisions  for  safety, 
and  the  relative  risk  of  injury  from  different  possible  causes 
of  it.  With  this  interpretation  of  the  rule,  the  application  of  it 
is  easy.  As  applied  to  every  detail,  the  rule  is  the  same.  The 
degree  of  care  to  be  used  is  the  highest;  that  is,  in  reference  to 
each  particular,  it  is  the  highest  which  can  be  exercised  in  that 
particular  with  a  reasonable  regard  to  the  nature  of  the  under- 
taking and  the  requirements  of  the  business  in  all  other  par- 
ticulars: Warren  v.  Fitchburg  R.  R.,  8  Allen  (Mass.)  227,  85 
Am.  D.  700;  Le  Barron  v.  East  Boston  Ferry  Co.,  11  Allen 
(Mass.)  312,  315,  87  Am.  D.  717;  Taylor  v.  Grand  Trunk  R'y,  48 
N.  H.  304,  316,  2  Am.  R.  229  ;  Tuller  v.  Talbot,  23  111.  298,  76  Am. 
D.  695. 

It  may  be  assumed  that  the  plaintiff  would  have  ceased  for 
the  time  to  be  a  passenger,  if  he  had  left  the  steamer  and  gone 
away  for  his  breakfast.  But  he  was  injured  before  he  had 
completed  his  exit.  Inasmuch  as  he  had  a  passenger's  right 
of  egress,  this  request  for  an  instruction  was  rightly  refused. 
For,  while  he  was  a  passenger,  the  degree  of  care  to  be  exer- 
cised towards  him  did  not  depend  upon  whether  he  was  on 
the  steamer,  or  on  the  plank,  or  the  slip.  It  was  the  same  in 
either  place.  But  in  determining  what  is  the  utmost  care  and 
diligence  within  the  meaning  of  this  rule,  it  is  always  neces- 
sary to  consider  what  is  reasonable  under  the  circumstances. 
The  decision  in  Moreland  v.  Boston  etc.  R.  R.,  141  Mass.  31,  6 
N.  E.  R.  225,  was  made  to  rest  upon  the  inaccuracy  of  the  in- 
structions as  to  the  degree  of  care  required  of  passengers,  and  it 
is  not  an  authority  for  the  defendant  in  the  present  case. 

In  its  eighth  request  the  defendant  asked  for  an  instruction 
as  to  the  rights  of  a  passenger  acting  in  disobedience  of  an 
order  or  regulation  of  a  carrier.  The  evidence  was  undisputed, 
that  the  defendant  had  provided  a  safe  and  convenient  place 
for  passengers  to  land  from  the  saloon  deck,  and  that  the 
place  where  the  plaintiff  was  injured  was  not  intended  for  use 

598 


PENNSYLVAxMA  EAILKOAD  CO.  v.  ASPELL.     §§  157,  158 

by  passengers.  The  judge  said  in  his  charge:  "The  phiintiff 
does  not  now  claim  that  the  defendant  did  not  furnish  proper 
means  of  egress  from  the  saloon  deck,  nor  do  I  understand 
that  the  plaintiff  now  claims  that  the  defendant  intended  the 
gangway,  which  was  in  fact  used  by  the  plaintiff,  for  use  by 
passengers  leaving  the  boat."  We  must  therefore  assume  that 
the  court  and  the  parties  treated  these  matters  as  undisputed 
facts  of  the  case,  and,  upon  these  facts,  a  warning  to  the  plain- 
tiff not  to  leave  the  steamer  from  the  gangway  by  which  he 
went  was  a  reasonable  order  or  regulation.  A  passenger  is  bound 
to  obey  all  reasonable  rules  and  orders  of  a  carrier  in  refer- 
ence to  the  business.  The  carrier  may  assume  that  he  will 
obey.  And  the  carrier  owes  him  no  duty  to  provide  for  his 
safety  when  acting  in  disobedience.  His  neglect  of  his  duty 
in  disobeying,  in  the  absence  of  a  good  reason  for  it,  will  pre- 
vent his  recovery  for  an  injury  growing  out  of  it. 

This  request,  as  applied  to  the  admitted  facts  of  the  case, 
and  to  a  fact  which  the  jury  might  have  found  from  the  evi- 
dence, contained  a  correct  statement  of  the  law:  Ellis  v.  Nar- 
ragansett  Steamship  Co.,  Ill  Mass,  146 ;  Pennsylvania  R.  R.  v. 
Zebe,  33  Pa.  St.  318 ;  McDonald  v.  Chicago  etc.  R.  R.,  26  Iowa 
124,  142,  96  Am.  D.  114;  Gleason  v.  Goodrich  Transp.  Co.,  32 
Wis.  85,  14  Am.  R.  716.  We  are  of  opinion  that  the  jury  should 
have  been  instructed  in  accordance  with  it.  It  was  not  a  re- 
quest for  an  instruction  merely  as  to  the  effect  of  a  part  of  the 
evidence  upon  a  particular  subject.  It  was  rather  a  request 
for  a  statement  of  the  law  applicable  to  one  phase  of  the  case, 
which  involved  a  consideration  of  all  the  evidence  relative  to 
that  phase  of  it.  And  if  by  the  word  "notified,"  in  the  ninth 
request,  was  meant  the  giving  of  a  notification  intelligibly,  so  as 
to  make  it  understood  by  the  plaintiff,  the  same  considerations 
apply  also  to  that  request.  No  instructions  were  given  upon 
this  subject,  and  because  of  this  error  the  entry  must  be,  ex- 
ceptions sustained. 

158.     PENNSYLVANIA  RAILROAD  CO.  V.  ASPELL, 

23  Pa.  St.  147;  62  Am.  D.  323.    1854. 

Action  for  injuries  to  a  passenger.  On  judgment  for  plaintiff 
defendant  sued  out  a  writ  of  error. 

By  Court,  Black,  C.  J.  The  plaintiff  below  was  a  passenger 
in  the  defendants'  cars  from  Philadelphia  to  Morgan's  Corner. 
The  train  should  have  stopped  at  the  latter  place,  but  some  de- 

599 


§  158  OF  CAKEIEKS  OF  PASSENGEES. 

feet  in  the  bell-rope  prevented  the  conductor  from  making  the 
proper  signal  to  the  engineer,  who  therefore  went  past,  though 
at  a  speed  somewhat  slackened  on  account  of  the  switches  which 
were  there  to  be  crossed.  The  plaintiff  seeing  himself  about 
to  be  carried  on,  jumped  from  the  platform  of  the  car  and 
was  seriously  hurt  in  the  foot.  He  brought  this  action,  and 
the  jury,  with  the  approbation  of  the  court,  gave  him  one 
thousand  five  hundred  dollars  in  damages. 

Persons  to  whom  the  management  of  a  railroad  is  intrusted 
are  bound  to  exercise  the  strictest  vigilance.  They  must  carry 
the  passengers  to  their  respective  places  of  destination  and  set 
them  down  safely,  if  human  care  and  foresight  can  do  it.  They 
are  responsible  for  every  injury  caused  by  defects  in  the  road,  the 
cars,  or  the  engines,  or  by  any  species  of  negligence,  however 
slight,  which  they  or  their  agents  may  be  guilty  of.  But  they 
are  answerable  only  for  the  direct  and  immediate  consequences 
of  errors  committed  by  themselves.  They  are  not  insurers  against 
the  perils  to  which  a  passenger  may  expose  himself  by  his  own 
rashness  or  folly.  One  who  inflicts  a  wound  upon  his  own 
body  must  abide  the  suffering  and  the  loss,  whether  he  does 
it  in  or  out  of  a  railroad  car.  It  has  been  a  rule  of  law  from 
time  immemorial,  and  is  not  likely  to  be  changed  in  all  time  to 
come,  that  there  can  be  no  recovery  for  an  injury  caused  by 
the  mutual  default  of  both  parties.  When  it  can  be  shown  that 
it  would  not  have  happened  except  for  the  culpable  negligence  of 
the  party  injured  concurring  with  that  of  the  other  party,  no 
action  can  be  maintained. 

A  railroad  company  is  not  liable  to  a  passenger  for  an  acci- 
dent which  the  passenger  might  have  prevented  by  ordinary 
attention  to  his  own  safety,  even  though  the  agents  in  charge 
of  the  train  are  also  remiss  in  their  duty. 

From  these  principles,  it  follows  very  clearly  that  if  a  passen- 
ger is  negligently  carried  beyond  the  station  where  he  intended 
to  stop,  and  where  he  had  a  right  to  be  let  off,  he  can  recover 
compensation  for  the  inconvenience,  the  loss  of  time,  and  the 
labor  of  traveling  back;  because  these  are  the  direct  conse- 
quences of  the  wrong  done  to  him.  But  if  he  is  foolhardy 
enough  to  jump  off  without  waiting  for  the  train  to  stop,  he 
does  it  at  his  own  risk,  because  this  is  gross  imprudence,  for 
which  he  can  blame  nobody  but  himself.  If  there  be  any  man 
who  does  not  know  that  such  leaps  are  extremely  dangerous, 
especially  when  taken  in  the  dark,  his  friends  should  see  that 
he  does  not  travel  by  railroad. 

It  is  true  that  a  person  is  not  chargeable  with  neglect  of  his 
own  safety  when  he  exposes  himself  to  one  danger  by  trying  to 

600 


PENNSYLVANIA  EAILEOAD  CO.  v.  ASPELL.  §  158 

avoid  another.  In  such  a  case  the  author  of  the  original  peril 
is  answerable  for  all  that  follows.  On  this  principle  we  decided 
last  year,  at  Pittsburgh,  that  the  owners  of  a  steamboat,  "^hich 
was  endangered  by  a  pile  of  iron  wrongfully  left  on  the  wharf, 
and  to  get  clear  of  it  was  backed  out  into  the  stream,  where  she 
was  struck  by  a  coal-boat  and  sunk,  had  a  good  cause  of  action 
against  the  city  corporation,  whose  duty  it  was  to  have  removed 
the  iron :  Pittsburg  City  v.  Grier,  22  Pa.  St.  55,  60  Am.  D.  65. 
If,  therefore,  a  person  should  leap  from  the  car  under  the  in- 
fluence of  a  well-grounded  fear  that  a  fatal  collision  is  about  to 
take  place,  his  claim  against  the  company  for  the  injury  he  may 
suffer  will  be  as  good  as  if  the  same  mischief  had  been  done  by 
the  apprehended  collision  itself.  When  the  negligence  of  the 
agents  puts  a  passenger  in  such  a  situation  that  the  danger  of 
remaining  on  the  cars  is  apparently  as  great  as  would  be  en- 
countered in  jumping  off,  the  right  to  compensation  is  not  lost 
by  doing  the  latter*;  and  this  rule  holds  good  even  where  the  event 
has  shown  that  he  might  have  remained  inside  with  more  safety. 
Such  w^as  the  decision  in  Stokes  v.  Saltonstall,  13  Pet.  181,  so 
much  relied  on  by  the  defendant  in  error.  A  passenger  in  a 
stage-coach,  seeing  the  driver  drunk,  the  horses  mismanaged, 
and  the  coach  about  to  upset,  jumped  out,  and  was  thereby  much 
hurt.  The  court  held  the  proprietors  of  the  line  responsible, 
because  the  misconduct  of  their  servant  had  reduced  the  passen- 
ger to  the  alternative  of  a  dangerous  leap  or  remaining  at  great 
peril.  But  did  the  plaintiff  in  the  present  case  suffer  the  injury 
he  complains  of  by  attempting  to  avoid  another  with  which  he 
was  threatened?  Certainly  not.  He  was  in  no  possible  danger 
of  an3i;hing  worse  than  being  carried  on  to  a  place  where  he  did 
not  choose  to  go.  That  might  have  been  inconvenient;  but  to 
save  himself  from  a  mere  inconvenience  by  an  act  which  put  his 
life  in  jeopardy  was  inexcusable  rashness. 

Thus  far  I  have  considered  the  case  without  reference  to  cer- 
tain facts  disclosed  in  the  evidence,  which  tend  to  diminish  the 
culpability  of  the  defendants'  agents,  while  they  aggravate  (if 
anything  can  aggravate)  the  folly  of  the  plaintiff.  "When  he  was 
about  to  jump,  the  conductor  and  the  brakeman  entreated  him 
not  to  do  it,  warned  him  of  the  danger,  and  assured  him  that 
the  train  should  be  stopped  and  backed  to  the  station.  If  he 
had  heeded  them,  he  would  have  been  safely  let  down  at  the 
place  he  desired  to  stop  at  in  less  than  a  minute  and  a  half. 
Instead  of  this,  he  took  a  leap  which  promised  him  nothing 
but  death ;  for  it  was  made  in  the  darkness  of  midnight,  against 
a  wood-pile  close  to  the  track,  and  from  a  car  going  probably  at 
the  full  rate  of  ten  miles  an  hour. 

601 


§  158  OF  CAERIERS  OF  PASSENGERS. 

Though  these  facts  were  uncontradicted,  and  though  the 
court  expressed  the  opinion  that  no  injury  would  have  hap- 
pened to  the  plaintiff  but  for  his  own  imprudence,  the  jury 
were  nevertheless  instructed  that  the  defendants  were  bound 
to  compensate  him  in  damages.  The  learned  judge  held  that 
the  cases  of  mutual  neglect  did  not  apply,  because  this  action 
was  on  a  contract.  Now,  a  party  who  violates  a  contract  is  not 
liable  any  more  than  one  who  commits  a  tort  for  damages  which 
do  not  necessarily  or  immediately  result  from  his  own  act  or 
omission.  In  neither  case  is  he  answerable  for  the  evil  conse- 
quences which  may  be  superadded  by  the  default,  negligence, 
or  indiscretion  of  the  injured  party. 

There  is  no  form  of  action  known  to  the  law  (and  the  wit  of 
man  can  not  invent  one)  in  which  the  plaintiff  will  be  allowed 
to  recover  for  an  act  not  done  or  caused  by  the  defendant,  but 
by  himself. 

When  the  train  approached  Morgan's  Corners  some  one  (prob- 
ably the  conductor)  announced  it.  Much  stress  was  laid  on 
this  fact.  The  court  said,  in  substance,  that  to  make  such  an 
announcement  before  the  train  actually  stopped  was  a  want  of 
diligence,  whereby  the  plaintiff  was  thrown  into  a  position  of 
danger;  and  though  he  was  warned  not  to  jump,  yet  having 
done  so,  he  could  make  the  company  pay  him  for  the  hurt  he 
received. 

We  think  this  totally  wrong.  It  is  not  carelessness  in  a  con- 
ductor to  notify  passengers  of  their  approach  to  the  station 
at  which  they  mean  to  get  off,  so  that  they  may  prepare  to  leave 
with  as  little  delay  as  possible  when  the  train  stops.  And  we 
can  not  see  why  such  a  notice  should  put  any  man  of  common 
discretion  in  peril.  It  is  scarcely  possible  that  the  plaintiff  could 
have  understood  the  mere  announcement  of  Morgan's  Corner 
as  an  order  that  he  should  leap  without  waiting  for  a  halt.  If 
he  did  make  that  absurd  mistake,  it  was  amply  corrected  by  the 
earnest  warnings  which  he  afterwards  received. 

The  remark  of  the  court  that  life  and  limb  should  not  be 
weighed  against  time  is  most  true ;  and  the  plaintiff  should  have 
thought  of  it  when  he  set  his  own  life  on  the  hazard  of  such  a 
leap  for  the  sake  of  getting  to  the  ground  a  few  seconds  earlier. 
Locomotives  are  not  the  only  things  that  may  go  off  too  fast; 
and  railroad  accidents  are  not  always  produced  by  the  miscon- 
duct of  agents.  A  large  proportion  of  them  is  caused  by  the 
recklessness  of  passengers.  This  is  a  great  evil,  which  we  would 
not  willingly  encourage  by  allowing  a  premium  on  it  to  be 
extorted  from  companies.     However  bad  the  behavior  of  those 

602 


FILEK  V.  N.  Y.  CEN.  E.  E.  CO.  §§  158,  159 

companies  may  sometimes  be,  it  would  not  be  corrected  by  mak- 
ing them  pay  for  faults  not  their  own. 

The  court  should  have  instructed  the  jury  that  the  evidence, 
taken  altogether  (or  even  excluding  that  for  the  defense),  left 
the  plaintiff  without  the  shade  of  a  case. 

Judgment  reversed,  and  venire  facias  de  novo  awarded. 


159.     FILER  V.  NEW  YORK  CENTRAL  RAILROAD  CO., 

49  N.  Y.  47;  10  Am.  E.  327.    1872. 

Action  for  damages  for  injuries  permanently  disabling  de- 
fendant. The  train  slowed  up  at  her  station,  but  did  not  stop. 
A  brakeman  said  to  her,  "You  had  better  get  oft';  they  are  not 
going  to  halt  any  more."  She  tried  to  get  off,  but  her  skirts 
caught  and  she  was  dragged  some  distance,  receiving  painful 
and  permanent  injuries.  A  judgment  for  plaintiff  was  affirmed 
by  the  Supreme  Court,  and  appeal  was  then  taken  to  the  Court 
of  Appeals. 

Allen,  J.  It  was  submitted  to  the  jury,  if  they  found  that  the 
plaintiff  was  directed  by  the  brakeman  to  leave  the  cars  or  get 
off  when  the  cars  were  in  motion,  to  determine  whether  under 
the  circumstances  there  was  any  such  negligence  on  her  part  as 
would  preclude  her  from  recovering;  the  judge  having  in  sub- 
stance instructed  the  jury  that  if  a  person  seeks  to  recover  for 
injuries  resulting  from  the  negligence  of  another,  he  must  him- 
self be  free  from  any  negligence  contributing  to  the  injury. 
The  question  was  put  to  the  jury  whether  the  plaintiff  acted  as 
prudent  persons  generally  would  have  acted  under  the  circum- 
stances, and  the  charge  was  that,  if  she  did,  that  would  not  bar 
a  recovery. 

There  is  no  complaint  of  the  manner  in  which  the  question  as 
to  the  alleged  contributory  negligence  of  the  plaintiff  was  sub- 
mitted to  the  jury,  if  there  Avas  any  question  for  submission. 
The  claim  of  the  defendant  is,  that  the  complaint  should  have 
been  dismissed,  or  a  verdict  ordered  against  the  plaintiff,  upon 
the  ground  that  she  was  culpably  careless  and  negligent,  and 
by  her  carelessness  and  negligence  contributed  to  the  injury, 
and  that,  there  being  no  dispute  as  to  the  facts,  the  question 
was  one  of  law  for  the  court  and  not  of  fact  for  the  jury. 

Ordinarily  the  question  of  negligence  is  one  of  mixed  law 
and  fact,  and  it  is  the  duty  of  the  court  to  submit  the  same  to 

603 


§  159  OF  CAKEIEES  OF  PASSENGERS. 

the  jury,  with  proper  instructions  as  to  the  law.  What  is  propei 
care  is  sometimes  a  question  of  law,  when  there  is  no  controversy 
about  the  facts ;  but  where  there  is  evidence  tending:  to  prove 
negligence  on  the  part  of  the  defendant,  and  a  question  arises 
whether  the  plaintiff  has  by  his  own  fault  contributed  to  the  in- 
jury, it  is  ordinarily  a  question  for  the  jury.  If  the  evidence  is 
of  that  character  that  a  verdict  for  the  plaintiff  would  be  clearly 
against  evidence,  the  question  is  one  of  law  and  should  be  decided 
by  the  court. 

The  fact  is  undisputed  that  the  plaintiff  received  the  injury 
while  attempting  to  get  off  the  cars  while  they  were  in  motion, 
making  very  slow  progress,  and  the  jury  have  found  that  she 
was  directed  by  the  brakeman  on  the  cars  to  get  off,  and  was  told 
by  him  that  they  would  not  stop  or  move  more  slowly  to  enable 
her  to  do  so.  That  it  was  culpable  negligence  on  the  part  of  the 
defendant  to  induce  or  permit  the  plaintiff  to  leave  the  train 
while  in  motion,  and  a  gross  disregard  of  the  duty  it  owed  her, 
not  to  stop  the  train  entirely  and  give  her  ample  time  to  pass 
off  with  her  luggage,  is  not  disputed.  Notwithstanding  this,  if 
the  plaintiff  did  not  exercise  ordinary  care,  and  might  with  ordi- 
nary care  and  prudence  have  avoided  the  injury,  she  is  precluded 
from  recovering. 

The  degree  of  negligence  of  which  the  parties  are  respectively 
guilty,  or  whether  the  fault  of  the  defendant  was  a  breach  of 
contract  or  the  mere  omission  of  some  duty  resting  upon  it  as  a 
carrier  of  passengers,  is  not  material. 

The  plaintiff's  negligence  may  have  been  slight  and  that  of 
the  defendant  what  is  ordinarily  termed  gross ;  but  if  the  plain- 
tiff's fault  directly  and  proximately  contributed  to  the  injury, 
she  cannot  recover. 

Indeed,  it  is  now  said  that  there  is  no  difference  between 
negligence  and  gross  negligence,  the  latter  being  nothing  more 
than  the  former,  with  a  vituperative  epithet.  Grill  v.  Iron  Screw 
Collier  Co.,  L.  R.,  1  C.  P.  600 ;  Wilson  v.  Brett,  11  M.  &  W.  113. 

That  there  was  more  hazard  in  leaving  a  car  while  in  motion, 
although  moving  ever  so  slowly,  than  when  it  is  at  rest,  is  self- 
evident.  But  whether  it  is  imprudent  and  careless  to  make  the 
attempt  depends  upon  circnmstances ;  and  where  a  party,  by  the 
wrongful  act  of  another,  has  been  placed  in  circumstances  calling 
for  an  election  between  leaving  the  cars  or  submitting  to  an  in- 
convenience and  a  further  wrong,  it  is  a  proper  question  for  the 
jury  whether  it  was  a  prudent  and  ordinarily  careful  act,  or 
whether  it  was  a  rash  and  reckless  exposure  of  the  person  to 
peril  and  hazard. 

The  plaintiff  had  purchased  a  ticket  and  taken  passage  for 

604 


FILEE  V.  N.  Y.  CEN.  E.  E.  CO.  §  159 

Fort  Plain,  at  which  place  this  train  was  advertised  to  stop,  and, 
on  approaching  the  station,  the  name  of  the  place  was  called 
as  a  notice  to  the  passengers  intending  to  leave  the  train  at  that 
place  to  be  prepared  to  get  off,  Avhich  was  equivalent  to  notice 
that  proper  time  and  facilities  would  be  afforded  them  for  their 
passage  from  the  cars,  and  the  speed  of  the  cars  was  reduced 
very  greatly,  so  that  the  baggage  was  removed  and  taken  from 
the  baggage  car  by  the  porter ;  one  man,  supposed  to  be  a  little 
lame,  had  gotten  off  safely. 

The  plaintiff  was  told  that  the  cars  would  not  make  any  other 
stop,  and  that  she  must  get  off  there,  and  in  attempting  to  do  so 
she  was  injured. 

She  was  put  to  her  choice,  without  any  fault  of  hers,  whether 
to  obey  the  advice  and  suggestion  of  the  defendant 's  servant, 
and  follow  the  example  of  the  man  who  had  preceded  her,  or  to 
remain  on  the  cars  and  be  carried  beyond  the  place  of  her  des- 
tination, and  away  from  her  friends,  and  it  was  a  proper  question 
for  the  jury  whether  this  M^as  or  was  not,  under  the  circum- 
stances, an  act  of  ordinary  care  and  prudence. 

It  is  true,  there  was  no  absolute  necessity  for  this  act ;  but  she 
was  called  upon  to  decide  upon  the  instant,  and  under  peculiar 
circumstances,  and  ought  not  to  be  held  to  the  most  rigid  account 
for  the  exercise  of  the  highest  degree  of  caution  as  against 
one  confessedly  wrong.  If,  in  leaving  the  cars,  she  did  not  exer- 
cise the  care  and  caution  which  she  might,  and  ought  to  have 
done,  and  vras  careless  and  negligent  in  her  movements,  or  in  the 
care  of  her  dress,  and  by  reason  of  such  want  of  care  caused  or 
contributed  to  the  injury,  she  ought  not  to  recover ;  but  no  ques- 
tion was  made  at  the  trial  upon  this  branch  of  the  case,  except 
upon  the  eft'ect  of  her  leaving  the  cars  when  in  motion. 

Had  the  cars  been  going  at  a  rapid  rate,  the  plaintiff  must 
have  known  that  she  would  be  injured  by  leaping  from  them, 
and  the  attempt  to  leave  the  cars,  under  such  circumstances, 
even  at  the  instance  of  the  railway  servants,  would  have  been  a 
wanton  and  reckless  act,  and  no  recovery  could  have  been  had 
against  the  defendant.  In  Lucas  v.  New  Bedford  and  Taunton 
R.  R.  Co.,  6  Gray,  64,  66  Am.  D.  406,  the  plaintiff  had  accom- 
panied a  friend  to  the  cars  and  remained  with  her  until  the 
train  had  started,  and  then  of  her  own  volition  attempted  to 
leave  and  received  an  injury,  and  it  was  held  that  her  own  act 
was  the  cause  of  the  injury,  and  that  the  defendant  was  in  no 
respect  in  fault. 

In  Hickey  v.  Boston  and  Lowell  R.  R.  Co.,  14  Allen,  429,  the 
plaintiff's  intestate  took  a  position  upon  the  platform  of  a  car 
as  it  was  coming  into  a  station,  w^here  he  was  exposed  to  danger, 

605 


§  159  OF  CARKIEKS  OF  PASSENGEES. 

voluntarily  and  without  reasonable  cause  of  necessity  or  pro- 
priety, and  it  was  properly  held  that  the  express  or  implied 
assent  and  permission  of  the  conductor  of  the  train  did  not 
change  the  relation  of  the  parties  and  relieve  the  deceased  from 
the  consequences  of  his  own  want  of  care.  Railroad  Co.  v. 
Aspell,  23  Penn.  147,  62  Am.  D.  323,  differed  essentially  in  all  its 
circumstances  from  the  case  at  bar.  The  plaintiff  there  leaped 
in  the  dark  from  a  train  of  cars  while  under  a  high  rate  of  speed, 
against  the  remonstrances  of  the  persons  in  charge  of  the  train, 
and  under  an  assurance  that  the  train  would  be  stopped  to  per- 
mit him  to  alight.  It  was  properly  held  a  wanton  and  reckless 
act,  precluding  a  right  to  recover  against  the  railroad  company. 
In  the  same  ease  the  principle  was  recognized  that  if  a  passenger 
was  ordinarily  careful  and  attentive  to  his  own  safety,  and  was 
injured  by  the  negligence  of  the  company,  he  might  recover. 
The  Penn.  R.  R.  Co.  v.  Kilgore,  32  Penn.  292,  72  Am.  D.  787,  is 
more  analogous  to  the  case  in  hand.  A  female  passenger,  accom- 
panied by  three  young  children,  on  arriving  at  an  intermediate 
station  proceeded  to  alight  with  them.  Two  of  the  children  had 
left  the  car,  and  while  the  plaintiff  was  still  upon  the  train  the 
cars  started,  when  she  sprang  upon  the  platform  on  which  one 
of  the  children  had  fallen  prostrate  and  was  injured.  She  was 
allowed  to  recover.  It  was  held  that  the  question  of  concurrent 
negligence  was  to  be  determined  by  the  particular  circumstances 
of  the  case.  There,  as  in  this  case,  the  defendant  had  involved 
the  plaintiff  in  the  attempt  to  get  off  the  cars;  and  her  efforts, 
made  with  proper  care  under  all  the  circumstances,  cannot  be 
imputed  to  her  for  negligence. 

It  is  not  denied  that  the  attempt  to  leave  the  cars  while  they 
are  in  motion  is  wrong.  But  as  said  by  Judge  Woodward,  in  the 
case  last  cited,  "it  is  one  thing  to  define  a  principle  of  law,  and  a 
very  different  matter  to  apply  it  well.  The  rights  and  duties 
of  parties  grow  out  of  the  circumstances  in  which  they  are 
placed." 

Mclntyre  v.  N.  Y.  C.  R.  R.  Co.,  37  N.  Y.  287,  is,  in  principle, 
analogous  to  this,  and  a  recovery  was  had  for  injuries  received 
by  a  passenger  in  passing  in  the  evening,  and  under  circum- 
stances increasing  the  hazard  of  the  undertaking  from  one  car 
to  another  while  the  train  was  in  motion,  the  attempt  having 
been  made  by  direction  of  the  defendant's  servants,  and  to  obtain 
a  seat  which  could  not  be  had  in  the  car  in  which  the  passenger 
was.  A  passenger  voluntarily  and  without  necessity  making 
such  an  attempt  and  receiving  an  injury,  would  be  held  to  be  at 
fault  and  without  remedy;  but  the  peculiar  circumstances  of 
the  case  took  it  out  of  the  general  rule.     In  Foy  v.  London, 

606 


FILER  V.  N.  Y.  CEN.  E.  E.  CO.  §  159 

Brighton  and  South  Coast  R.  R.  Co.,  18  C.  B.,  N.  S.,  225,  a 
recovery  was  had  for  an  injury  received  in  alighting  from  the 
cars,  caused  by  the  insufficient  means  for  alighting  furnished 
by  the  company,  although  the  hazard  of  the  attempt  was  as 
patent  to  the  plaintiff  as  to  the  servants  of  the  company.  The 
jury  there  found  that  the  defendant  was  guilty  of  negligence  in 
not  having  provided  conveniences  for  getting  down  from  the 
carriage,  and  negatived  the  claim  that  the  passenger  contributed 
to  the  accident. 

The  court  in  banc  sustained  the  recovery  and  refused  leave  to 
appeal,  saying :  "We  do  not  think  this  a  fit  case  to  appeal."  In 
that  ease,  the  lady  was  desired  by  a  porter  in  the  employ  of  the 
company  to  alight ;  and  that  circumstance  was  held  by  the  court 
to  distinguish  it  from  a  subsequent  case.  Siner  v.  G.  W.  R.  Co.,- 
L.  R.,  3  Esch.  150 ;  affirmed  in  Exchequer  Chambers,  17  W.  R. 
417. 

The  case  was  similar  in  all  its  circumstances  to  Foy's  Case, 
except  there  was  no  direction  or  request  by  the  company's  ser 
vants  to  the  lady  to  get  down  from  the  carriage.  The  court  held, 
against  the  dissent  of  Keij^y,  C.  B.,  in  the  court  of  exchequer, 
and  Justice  Keating,  in  the  exchecjuer  chambers,  that  there  was 
no  evidence  of  negligence  to  go  to  the  jury.  Chief  Baron  Kelly 
was  of  the  opinion  that  the  stopping  of  the  train,  without  any 
notice  to  the  passengers  to  get  out,  was  an  invitation  to  them  to 
do  SO;  that  the  descent,  although  dangerous,  was  not  so  clearly 
dangerous  that  the  plaintiff  might  not  properly  encounter  the 
risk;  and  that  the  company,  having  wrongfully  put  the  passen- 
gers to  the  necessity  of  choosing  between  two  alternatives,  the 
inconvenience  of  being  carried  on  and  the  danger  of  getting 
out,  they  were  liable  for  the  consequences  of  the  choice,  pro- 
vided it  was  not  exercised  wantonly  or  unreasonably.  The  reas- 
oning of  the  chief  baron  applies  with  force  to  this  case,  and  is 
in  harmony  with  Mclntyre  v.  N.  Y.  C.  R.  R.  Co.,  supra.  The 
danger  here  was  not  certain,  and  the  defendant  cannot  complain 
that  the  plaintiff  did,  under  the  circumstances,  encounter  some 
degree  of  peril,  the  jury  having  found  that  it  was  not  imprudent 
for  her  so  to  do,  and  was  encountered  at  the  instance  of  the 
brakeman  on  the  cars. 

If  the  injury  was  caused  by  the  awln\^ard  and  careless  manner 
in  which  the  plaintiff  got  down  from  the  cars,  a  different  question 
would  be  presented.  The  motion  for  a  nonsuit  was  properly 
denied. 

Upon  the  question  of  damages,  the  jury  were  instructed  to 
give  the  plaintiff,  if  the  questions  of  fact  were  found  in  her 
favor,  such  an  amount  of  damages  as  they  thought  she  was 

607 


§  159  OF  CAERIEES  OF  PASSENGEES. 

entitled  to  for  the  pain  and  suffering  consequent  upon  her  in- 
jury, and  for  any  disqualification  for  labor  in  the  exercise  of 
her  natural  powers.  A  distinct  exception  was  taken  to  that 
part  of  the  charge  which  included,  as  an  item  of  damages  proper 
to  be  allowed,  the  plaintiff's  disqualification  to  labor.  The  at- 
tention of  the  court  being  distinctly  called  to  the  precise  point 
presented,  an  opportunity  was  given  to  qualify  the  charge  and 
limit  its  application,  if  any  thing  less  was  intended  than  the 
language  would  clearly  import. 

It  was  not  qualified  or  explained,  and  must  be  held  as  an  in- 
struction, that  the  plaintiff  was  entitled  to  recover  consequential 
damages  resulting  from  her  inability  to  labor.  That  was  put 
forth  as  a  distinct  item  of  damages  proper  to  be  allowed,  and  was 
not  referred  to  as  evidence  of  the  extent  of  the  injury  and  con- 
sequent pain  and  suffering. 

There  was  no  claim  that  the  plaintiff  was,  at  the  time  of  the 
injury,  carrying  on  any  business,  trade  or  labor,  upon  or  for 
her  sole  and  separate  account.  Her  services  and  earnings  be- 
longed to  her  husband;  and  for  loss  of  such  services,  caused  by 
the  accident,  he  may  have  an  action;  and  another  record  before 
us  shows  that  he  has  recovered  for  them,  as  he  lawfully  might 
do.  Reeves'  Dom.  Rel.  (Parker's  ed.)  138,  and  cases  cited, 
marg.  p.  63.  The  Laws  of  1860,  chap.  90,  permit  a  married 
woman  to  carry  on  any  trade  or  business,  and  perform  any  labor 
or  services  on  her  sole  and  separate  account,  and  give  to  her 
her  earnings  from  her  trade,  business,  labor  or  service ;  and  she 
is  authorized  to  sue  for  any  injury  to  her  person  or  character, 
the  same  as  if  she  were  sole.  This  is  for  the  direct  injury,  and 
for  direct  and  immediate  damages,  unless  she  is,  on  her  own 
account  and  for  her  own  benefit,  engaged  in  some  business  in 
Vv'hich  she  sustains  a  loss. 

The  amendatory  act  of  1862,  chap.  172,  does  not  enlarge  the 
rights  of  the  wife,  or  detract  from  the  rights  of  the  husband, 
or  take  from  him  the  right  to  recover  for  the  loss  of  service  of 
his  wife,  caused  by  the  wrongful  act  of  another. 

Consequential  damages  are  in  all  cases  limited  to  the  amount 
actually  sustained;  and  unless  the  wife  is  actually  engaged  in 
some  business  or  service  in  which  she  would,  but  for  the  injury, 
have  earned  something  for  her  separate  benefit,  and  which  she 
has  lost  by  reason  of  the  injury,  she  has  sustained  no  conse- 
quential damages;  she  has  lost  nothing  pecuniarily  by  reason 
of  her  inability  to  labor.  The  recovery  was  large,  and  was 
probably  affected  by  the  instruction  that  the  inability  of  the 

608 


I  SPRINGER  V.  FOED.  §§  159,  IGO 

plaintiff  to  labor  constituted  one  of  the  items  of  damage  to  be 
taken  ipto  account  by  the  jury. 

For  this  error  in  the  charge,  the  judgment  should  be  reversed 
and  a  new  trial  granted. 

All  concur,  Church,  C.  J.,  not  sitting. 


160.     SPRINGER  V.  FORD, 

189  III.  430;  59  N.  E.  B.  953;  82  Am.  St.  E.  464.    1901. 

Hand,  J.  This  is  an  action  brought  by  the  plaintiff  to  re- 
cover damages  for  an  injury  to  his  person.  The  trial  resulted 
in  a  verdict  and  judgment  for  the  plaintiff,  which  judgment 
has  been  affirmed  by  the  appellate  court  for  the  first  district. 

The  plaintiff  was  in  the  employ  of  the  Kinsella  Glass  Com- 
pany, a  tenant  of  the  defendant,  occupying  the  sixth  floor  of  an 
eight-story  building,  of  which  the  defendant  is  the  owner,  lo- 
cated on  Canal  street,  in  the  city  of  Chicago.  The  building  was 
equipped  with  a  passenger  and  a  freight  elevator,  both  of  which 
were  operated  and  controlled  by  the  defendant.  The  falling  of 
the  freight  elevator  while  plaintiff,  in  the  discharge  of  his  duty, 
was  a  passenger  thereon  caused  the  injury  complained  of. 

At  the  close  of  the  plaintiff's  testimony,  and  again  at  the 
close  of  all  the  testimony,  the  defendant  moved  the  court  to 
instruct  the  jury  to  find  the  defendant  not  guilty,  which  the 
court  declined  to  do,  and  the  action  of  the  court  in  that  behalf 
has  been  assigned  as  error. 

The  law  is  well  settled  that  persons  operating  elevators  in 
buildings  for  the  purpose  of  carrying  persons  from  one  story 
to  another  are  common  carriers  of  passengers :  Hartford  Deposit 
Co.  V.  Sollitt,  172  111.  222,  64  Am.  St.  Rep.  85,  50  N.  E.  178 ; 
Goodsell  V.  Taylor,  41  Minn.  207,  16  Am.  St.  Rep.  700,  42  N. 
W.  873 ;  Mitchell  v.  Marker,  62  Fed.  139 ;  Treadwell  v.  Whit- 
tier,  80  Cal.  575,  13  Am.  St.  Rep.  175,  22  Pac.  166 ;  Hodges  v. 
Percival,  132  111.  53,  23  N.  E.  423;  Kentucky  Hotel  Co.  v. 
Camp,  97  Ky.  424,  30  S.  W.  1010 ;  Lee  v.  Knapp,  55  Mo.  App. 
390;  Tousey  v.  Roberts,  114  N.  Y.  312,  11  Am.  St.  Rep.  655, 
21  N.  E.  399;  Southern  Bldg.  Assn.  v.  Lawson,  97  Tenn.  367, 
37  S.  W.  86.  In  Hartford  Deposit  Co.  v.  Sollitt,  172  111. 
225,  50  N.  E.  179,  64  Am.  St.  Rep.  37,  we  say:  ''Persons  ope- 
rating elevators  are  carriers  of  passengers,  and  the  same  rules 
applicable  to  other  carriers  of  passengers  are  applicable  to  those 
operating  elevators  for  raising  and  lowering  persons  from  one 
39  609 


§  160  OF  CAEEIEES  OF  PASSENGERS. 

floor  to  another  in  buildings."  In  Treadwell  v.  Wliittier,  80 
Oal.  575,  13  Am.  St.  Rep.  175,  22  Pac.  166,  it  was  said:  "The 
defendants  used  their  elevator  in  lifting  persons  vertically  to 
the  height  of  forty  feet.  That  they  were  carriers  of  passen- 
gers, and  should  be  treated  as  such,  we  have  no  doubt.  The 
same  responsibilities  as  to  care  and  diligence  rested  on  them 
as  on  the  carriers  of  passengers  by  stage-coach  or  railway. ' '  In 
Goodsell  V.  Taylor,  41  Minn.  207,  16  Am.  St.  Rep.  700,  42  N. 
W.  873,  the  court  say:  "The  relation  between  the  owner  and 
manager  of  an  elevator  for  passengers  and  those  carried  in  it 
is  similar  to  that  between  an  ordinary  common  carrier  of  pas- 
sengers and  those  carried  by  him." 

The  operators  of  such  elevators,  upon  the  grounds  of  public 
policy,  are  required  to  exercise  the  highest  degree  of  care  and, 
diligence.  The  lives  and  safety  of  a  large  number  of  human  be- 
ings are  intrusted  to  their  care,  and  the  law  requires  them  to 
use  extraordinary  .diligence  in  and  about  the  operation  of  such 
elevators  to  prevent  injury  to  passengers  being  carried  therein. 
In  Hartford  Deposit  Co.  v.  Sollitt,  172  111.  225,  64  Am.  St. 
Rep.  37,  50  N.  E.  179,  it  is  said:  "It  is  a  duty  of  such  carriers 
of  passengers  to  use  extraordinary  care  in  and  about  the  opera- 
tion of  such  elevators,  so  as  to  prevent  injury  to  persons  there- 
in." And  in  Treadwell  v.  Whittier,  80  Cal.  575,  13  Am.  St. 
Rep.  175,  22  Pac.  166,  the  court  say:  "Persons  who  are  lifted 
by  elevators  are  subjected  to  great  risks  to  life  and  limb.  They 
are  hoisted  vertically,  and  are  unable,  in  the  case  of  the  break- 
ing of  the  machinery,  to  help  themselves.  The  person  running 
such  elevator  must  be  held  to  undertake  to  raise  such  persons 
safely,  as  far  as  human  care  and  foresight  will  go.  The  law 
holds  him  to  the  utmost  care  and  diligence  of  very  cautious 
persons,  and  responsible  for  the  slightest  neglect.  Such  respon- 
sibility attaches  to  all  persons  engaged  in  employments  where 
human  beings  submit  their  bodies  to  their  control,  by  which 
their  lives  or  limbs  are  put  at  hazard  or  where  such  employment 
is  attended  with  danger  to  life  or  limb.  The  utmost  care  and 
diligence  must  be  used  by  persons  engaged  in  such  employments 
to  avoid  injury  to  those  they  carry.  The  care  and  diligence  re- 
quired is  proportioned  to  the  danger  to  the  persons  carried.  In 
proportion  to  the  degree  of  danger  to  others  must  be  the  care 
and  diligence  to  be  exercised.  Where  the  danger  is  great  the 
utmost  care  and  diligence  must  be  employed.  In  such  cases  the 
law  requires  extraordinary  care  and  diligence."  And  in  Good- 
sell  V.  Taylor,  41  Minn.  207,  16  Am.  St.  Rep.  702,  42  N.  W. 
874,  it  is  said:  "The  same  reason  exists  for  requiring  on  the 
part  of  the  owner  [of  an  elevator]  the  utmost  care  and  fore- 

610 


SPEINGER  V.  FORD.  §  160 

sight  and  for  making  him  responsible  for  the  slightest  degree  of 
negligence. ' ' 

When  a  passenger  is  injured  by  reason  of  the  giving  way  of 
some  portion  of  the  machinery  or  appliances  by  which  the  ele- 
vator is  operated,  the  presumption  of  negligence  from  such 
breaking,  unexplained,  arises.  In  New  York  etc.  R.  R.  Co.  v. 
Blumenthal,  160  111.  40,  43  N.  E.  809,  we  say  on  page  48  (160 
111.,  43  N.  E.  811)  :  "The  happening  of  an  accident  to  a  pas- 
senger during  the  course  of  his  transportation  raises  a  presump- 
tion that  the  carrier  has  been  negligent.  The  burden  of  re- 
butting this  presumption  rests  upon  the  carrier.  Undoubtedly, 
the  law  requires  the  plaintiff  to  show  that  the  defendant  haf 
been  negligent.  But  where  the  plaintiff  is  a  passenger,  a  prima 
facie  case  of  negligence  is  made  out  by  showing  the  happening 
of  the  accident.  If  the  injury  to  a  passenger  is  caused  by  ap- 
paratus wholly  under  the  control  of  the  carrier  and  furnished 
and  applied  by  it,  a  presumption  of  negligence  on  its  part  is 
raised."  And  in  Hartford  Deposit  Co.  v.  Sollitt,  172  111.  225, 
64  Am.  St.  Rep.  37,  50  N.  E.  179,  it  is  said:  "The  fact  of  the 
falling  of  the  elevator  is  evidence  tending  to  show  want  of  care 
in  its  management  by  the  operator  or  its  servants,  or  that  the 
same  was  out  of  repair  or  faultily  constructed."  In  the  case  of 
Ellis  V.  Waldron,  19  R.  I.  369,  33  Atl.  869,  in  an  action  by  the 
servant  of  a  tenant  of  a  building  against  the  owner  for  injuries 
caused  by  the  falling  of  an  elevator,  the  declaration  alleged  that 
the  defendant  had  granted  to  the  plaintiff's  employer,  as  part 
of  his  leasehold  interest  in  the  premises,  the  use  of  the  elevator 
for  moving  his  goods ;  that  at  the  time  of  the  accident  the  plain- 
tiff was  upon  the  elevator,  engaged  in  the  employment  of  moving 
his  master 's  goods ;  that  the  machinery  in  the  elevator  was  de- 
fective and  unsafe,  of  which  he  had  no  knowledge,  but  which 
fact  was  known  to  the  defendant,  or  should  have  been  known  if 
he  had  exercised  a  proper  amount  of  diligence.  The  court  held 
that  the  declaration  alleged  sufficient  facts  to  show  that  it  was 
the  duty  of  the  defendant  to  keep  and  maintain  the  elevator  in 
a  safe  and  suitable  condition  for  the  plaintiff's  use,  as  the  em- 
ployee of  the  tenant;  and,  further,  that  the  elevator  not  being 
under  the  control  of  plaintiff,  it  was  not  his  duty  to  examine  it 
and  ascertain  whether  it  was  suitable  and  safe,  and  hence  he 
was  not  required  to  allege  specifically  the  nature  of  the  defect 
which  caused  the  accident. 

The  contention  on  behalf  of  defendant,  that  the  principles 
above  announced  have  no  application  to  a  person  owning  and 
operating  a  freight  elevator,  is  not  tenable  when  a  passenger 
is  lawfully  and  rightfully  upon  such  elevator.    Such  passenger, 

611 


§  IGO  OF  CAKKIEES  OF  PASSENGEES. 

by  reason  of  the  construction  of  that  class  of  elevators,  is  sub- 
jected to  great  risks  and  many  hazards.  The  liability,  how- 
ever, of  the  owner  or  manager  thereof  as  a  common  carrier  is 
measured  by  the  same  rules,  and  he  is  held  to  the  same  degree 
of  diligence,  as  that  of  persons  owning  and  operating  passenger 
elevators.  In  the  case  of  Chicago  etc.  R.  R.  Co.  v.  Arnol,  144 
111.  261,  33  N.  E.  204,  where  a  passenger  upon  a  freight  train 
was  held  entitled  to  recover  for  a  personal  injury  received  by 
reason  of  the  negligent  management  of  the  train,  it  was  said 
(144  111.  271)  :  "From  the  composition  of  such  a  train  and  the 
appliances  necessarily  used  in  its  efficient  operation,  there  can- 
not, in  the  nature  of  things,  be  the  same  immunity  from  peril  in 
traveling  by  freight  train  as  there  is  by  passenger  trains,  but 
the  same  degree  of  care  can  be  exercised  in  the  operation  of 
each,"  And  in  New  York  etc.  R.  R.  Co.  v.  Blumenthal,  160 
111.  40,  43  N.  E.  809,  it  was  held  a  drover  riding  on  a  railway 
freight  train  in  charge  of  cattle  he  was  shipping  might  recover 
for  an  injury  received  by  the  negligent  management  of  the  train. 
On  page  48  (160  111.)  the  court  say:  "A  carrier  will  be  held  to 
the  same  strict  accountability  for  the  negligence  of  its  servants 
resulting  in  injury  to  a  passenger  who  is  lawfully  and  properly 
on  a  freight  train,  as  governs  its  liability  for  such  negligence 
when  the  transportation  is  upon  a  train  devoted  to  passenger 
service  exclusively. ' ' 

In  the  case  of  Hartford  Deposit  Co.  v.  Sollitt,  172  111.  222,  64 
Am.  St.  Rep.  35,  50  N.  E.  178,  we  held  that  the  owner  of  a  pas- 
senger elevator  was  subject  to  all  the  rules  and  liabilities  of 
any  other  carrier  of  passengers,  and  there  is  no  reason,  in  prin- 
ciple, why  the  analogy  held  to  exist  between  passenger  and 
freight  trains,  as  common  carriers,  does  not  exist  between  pas- 
senger and  freight  elevators,  in  cases  where  the  owners  of  freight 
elevators  permit  the  carriage  of  passengers  thereon  for  hire.  The 
proprietors  of  an  elevator  run  for  the  use  of  the  tenants  of  an 
office  building  is  a  carrier  of  passengers  for  hire.  The  proprie- 
tor 's  compensation  is  the  rental  paid  him  by  the  tenant :  10  Am. 
&  Eng.  Ency.  of  Law,  2d  ed.,  946. 

The  question  as  to  whether  the  plaintiff  was  lawfully  on  the 
elevator  at  the  time  of  the  injury,  in  the  performance  of  a  duty 
incident  to  his  employment,  was  a  question  of  fact  for  the  jury: 
Stewart  v.  Harvard  College,  12  Allen,  58.  That  the  elevator  fell, 
that  the  plaintiff  was  rightfully  a  passenger  thereon,  and  that 
he  was  seriously  injured  by  its  fall,  was  clearly  shown  by  the 
plaintiff's  testimony.  The  trial  court  did  not,  therefore,  err  in 
declining  to  take  the  case  from  the  jury. 

The  provision  in  the  lease  of  the  defendant  to  the  Kinsella 

612 


SEAES  V.  EASTEKN  KAILKOAD  CO.  §§  160,  161 

Glass  Company,  to  the  effect  that  the  defendant  should  ' '  not  be 
liable  for  any  damages  occasioned  by  a  failure  to  keep  said  prem- 
ises and  elevator  in  repair, ' '  was  not  binding  upon  plaintiff.  He 
was  not  a  party  thereto.  A  carrier  of  persons  cannot  limit  his 
liability  to  a  passenger  except  by  express  contract  with  the  pas- 
senger. 

The  court  did  not  err  in  permitting  the  plaintiff  to  prove  that 
it  was  his  custom,  as  well  as  the  custom  of  the  employees  of 
other  tenants  in  the  buildings,  to  accompany  freight  being  ele- 
vated' or  lowered  by  them  on  said  elevator  while  such  elevator 
was  being  operated  by  the  agent  of  defendant.  Such  evidence 
was  properly  admitted  as  tending  to  show  that  plaintiff  was 
rightfully  upon  said  elevator  at  the  time  of  the  accident. 

The  jury  were  properly  instructed.  All  the  refused  instruc- 
tions were  covered  by  instructions  given,  or  are  in  conflict  with 
the  views  herein  expressed. 

We  find  no  error  in  this  record.  The  judgment  of  the  ap- 
pellate court  will  therefore  be  affirmed. 

Compare  Burgess  v.  Stowe,  —  Mich.  — ;  96  N.  W.  R.  29.  1903. 


161.     SEARS  V.  EASTERN  RAILROAD  CO., 

14  Allen  (Mass.)  433;  92  Am.  D.  780.     1867. 

Action  containing  one  count  in  contract  and  one  in  tort.  Judg- 
ment for  defendants  and  plaintiff  appeals. 

By  Court,  Chapman,  J.  If  this  action  can  be  maintained,  it 
must  be  for  the  breach  of  the  contract  which  the  defendants 
made  with  the  plaintiff.  He  had  purchased  a  package  of  tick- 
ets entitling  him  to  a  passage  in  their  cars  for  each  ticket  from 
Boston  to  Lynn.  This  constituted  a  contract  between  the  par- 
ties :  Cheney  v.  Boston  and  Fall  River  R.  R.,  11  Met.  121,  45 
Am.  Dec.  190 ;  Boston  and  Lowell  R.  R.  v.  Proctor,  1  Allen,  267, 
79  Am.  Dec.  729 ;  Najac  v.  Boston  and  Lowell  R.  R.,  7  Allen,  329, 
83  Am.  D.  686.  The  principal  question  in  this  case  is,  What 
are  the  terms  of  the  contract  ?  The  ticket  does  not  express  all 
of  them.  A  public  advertisement  of  the  times  when  their  trains 
run  enters  into  the  contract,  and  forms  a  part  of  it :  Denton  v. 
Great  Northern  R'y,  5  El.  &  B.  860.  It  is  an  offer  which,  when 
once  publicly  made,  becomes  binding  if  accepted  before  it  is  re- 
tracted :  Boston  and  Maine  R.  R.  v.  Bartlett,  3  Cush.  227.  Adver- 
tisements offering  rewards  are  illustrations  of  this  method  of  mak- 
ing contracts.    But  it  would  be  unreasonable  to  hold  that  adver- 

613 


§  161  OF  CAERIEKS  OF  PASSENGERS. 

tisements  as  to  the  time  of  running  trains,  when  once  made,  are 
irrevocable.  Railroad  corporations  find  it  necessary  to  vary  the 
time  of  running  their  trains,  and  they  have  a  right,  under  rea- 
sonable limitations,  to  make  this  variation,  even  as  against  those 
who  have  purchased  tickets.  This  reserved  right  enters  into 
the  contract,  and  forms  a  part  of  it.  The  defendants  had  such 
a  right  in  this  case. 

But  if  the  time  is  varied,  and  the  train  fails  to  go  at  the 
appointed  time,  for  the  mere  convenience  of  the  company  or  a 
portion  of  their  expected  passengers,  a  person  who  presents 
himself  at  the  advertised  hour  and  demands  a  passage  is  not 
bound  by  the  change  unless  he  has  had  reasonable  notice  of  it. 
The  defendants  acted  upon  this  view  of  their  duty,  and  gave  cer- 
tain notices.  Their  trains  had  been  advertised  to  go  from  Bos- 
ton to  Lynn  at  9  :30  p.  m.,  and  the  plaintiff  presented  himself, 
with  his  ticket,  at  the  station  to  take  the  train ;  but  was  there  in- 
formed that  it  was  postponed  to  11 :15.  The  postponement  had 
been  made  for  the  accommodation  of  passengers  who  desired  to 
remain  in  Boston  to  attend  places  of  amusement.  Certain  no- 
tices of  the  change  had  been  given ;  but  none  of  them  had  reached 
the  plaintiff.  They  were  printed  handbills  posted  up  in  the  cars 
and  stations  on  the  day  of  the  change,  and  also  a  day  or  two 
before.  Though  he  rode  in  one  of  the  morning  cars  from  Lynn 
to  Boston,  he  did  not  see  the  notice,  and  no  legal  presumption 
of  notice  to  him  arises  from  the  fact  of  its  being  posted  up : 
Brown  v.  Eastern  R.  R.,  11  Cush.  101;  Malone  v.  Boston  and 
Worcester  R.  R.,  12  Gray,  388,  74  Am.  Dec.  598.  The  defendants 
published  daily  advertisements  of  their  regular  trains  in  the 
Boston  Daily  Advertiser,  Post,  and  Courier,  and  the  plaintiff 
had  obtained  his  information  as  to  the  time  of  running  from  one 
of  these  papers.  If  they  had  published  a  notice  of  the  change 
in  these  papers,  we  think  he  would  have  been  bound  by  it.  For 
as  they  had  a  right  to  make  changes,  he  would  be  bound  to  take 
reasonable  pains  to  inform  himself  whether  or  not  a  change  was 
made.  So  if  in  their  advertisement  they  had  reserved  the  right 
to  make  occasional  changes  in  the  time  of  running  a  particular 
train,  he  would  have  been  bound  by  the  reservation.  It  would 
have  bound  all  passengers  who  obtained  their  knowledge  of  the 
time-tables  from  either  of  these  sources.  But  it  would  be  con- 
trary to  the  elementary  law  of  contracts  to  hold  that  persons 
M'ho  relied  upon  the  advertisements  in  either  of  those  papers 
should  be  bound  by  a  reservation  of  the  offer,  which  was,  without 
their  knowledge,  posted  up  in  the  cars  and  stations.  If  the  de- 
fendants wished  to  free  themselves  from  their  obligations  to  the 
whole  public  to  run  a  train  as  advertised,  they  should  publish 

614 


GOLDBEEG  v.  A.  &  W.  KY.  CO.  §§  161,  162 

notice  of  the  change  as  extensively  as  they  published  notice  of  the 
regular  trains.  And  as  to  the  plaintiff,  he  was  not  bound  by  a 
notice  published  in  the  cars  and  stations  which  he  did  not  see. 
If  it  had  been  published  in  the  newspapers  above  mentioned, 
where  his  information  had  in  fact  been  obtained,  and  he  had  neg- 
lected to  look  for  it,  the  fault  would  have  been  his  own. 

The  evidence  as  to  the  former  usage  of  the  defendants  to  make 
occasional  changes  was  immaterial,  because  the  advertisement 
was  an  express  stipulation  which  superseded  all  customs  that 
were  inconsistent  with  it.  An  express  contract  cannot  be  con- 
trolled or  varied  by  usage:  Ware  v.  Hayward  Rubber  Co.,  3 
Allen,  84. 

The  court  are  of  opinion  that  the  defendants,  by  failing  to 
give  such  notice  of  the  change  made  by  them  in  the  time  of 
running  their  train  on  the  evening  referred  to  as  the  plaintiff 
was  entitled  to  receive,  violated  their  contract  with  him,  and  are 
liable  in  this  action. 

Judgment  for  the  plaintiff. 


162.     GOLDBERG  V.  AHNAPEE  &  WESTERN  RAILWAY 

CO., 

105  Wis.  1;  76  Am.  St.  R.  899.     1899. 

Action  for  the  value  of  trunks  sent  to  the  station  in  the  even- 
ing for  checking  the  following  morning.  The  defendant's  agent 
had  no  knowledge  of  their  ownership,  or  the  purpose  for  which 
they  were  left  there.  They  burned  in  the  freight  house  during 
the  night.    Judgment  for  defendants. 

Dodge,  J.  1.  The  liability  of  a  carrier  for  ordinary  baggage 
while  in  its  possession  for  carriage  as  such  is  very  different  from 
the  liability  while  the  same  articles  are  in  storage  with  it.  In 
the  first  case  it  is  an  insurer ;  in  the  latter,  liable  only  as  a  bailee 
for  ordinary  care.  The  exact  point  at  which  the  possession  for 
carriage  begins  and  ends  is  not  easy  to  define,  but  it  is  not  such 
as  to  exclude  some  reasonable  time  at  station  before  and  after 
actual  transportation.  After  transportation  the  higher  liability 
continues  only  for  such  time  as  is  reasonably  necessary  to  present 
duplicate  checks  and  to  remove  the  baggage:  Hoeger  v.  Chi- 
cago etc.  R.  R.  Co.,  63  Wis.  100,  53  Am.  Rep.  271.  No  reason  is 
apparent  why  the  same  rule  should  not  apply  to  the  delivery  for 
transportation,  so  that  the  owner  has  the  right  to  deliver  at  the 
station  such  time  before  starting  of  train  as  may  be  reasonably 

615 


§§  162,  163  OF  CAEEIEES  OF  PASSENGEES. 

necessary  for  obtaining  ticket,  checking  the  baggage,  etc.,  and 
that  he  cannot  impose  this  extreme  liability  by  earlier  delivery 
without  the  consent  of  the  carrier :  Green  v.  Milwaukee  etc.  R. 
R'.  Co.,  38  Iowa,  100 ;  Goodbar  v.  Wabash  Ry.  Co.,  53  Mo.  App. 
434.  This  defendant  had,  by  a  rule  knowna  to  plaintiff,  prescribed 
thirty  minutes  before  train  time  as  such  reasonable  time.  It 
certainly  cannot  be  said,  as  matter  of  law,  that  such  limit  is 
unreasonable,  nor  that  twelve  hours  is  reasonable,  or  was  ren- 
dered reasonably  necessary  by  the  circumstances.  The  submis- 
sion of  that  question  to  the  jury  was  not  an  error  of  which 
plaintiff  can  complain.  As  to  whether  defendant  assented  to 
such  delivery,  and  accepted  plaintiff's  trunks  for  carriage  as 
baggage,  with  knowledge  of  their  contents,  was  a  disputed  ques- 
tion of  fact,  and  a  finding  in  the  negative  has  abundant  support 
in  the  evidence. 

2.  The  overruling  of  the  objection  to  the  testimony  of  de- 
fendant's agent,  Reitzel,  that  there  was  no  advantage  to  the 
company  in  having  the  trunks  delivered  the  night  before,  was 
without  prejudice;  for  it  appeared  by  plaintiff's  own  testimony 
that  the  agent  was  prohibited  from  checking  baggage  until  half 
and  hour  before  train  time,  and  that  the  convenience  of  the 
company  obviously  could  not  be  enhanced  by  delivery  of  bag- 
gage earlier  than  that  time. 

3.  Parol  proof  of  the  substance  of  the  rules,  printed  on  a  card 
and  tacked  up  in  the  depot,  prohibiting  checking  until  within 
half  an  hour  of  train  time,  could  not  have  prejudiced  plaintiff, 
for  he  testified  that  he  had  knowledge  of  such  a  rule.  Further, 
any  objection  to  parol  testimony  as  to  the  contents  of  such  card 
was  ob^nated  by  proof  that  it  had  been  destroyed  in  the  burning 
of  the  station. 

We  find  no  reversible  error  in  the  record. 
By  the  Court.    Judgment  affirmed. 


163.    RAILROAD  CO.  V.  FRALOFF, 

100  V.  8.  24.     1879. 

Mr.  Justice  Harlan  delivered  the  opinion  of  the  court. 

This  is  a  writ  of  error  to  a  judgment  rendered  against  the 
New  York  Central  and  Hudson  River  Railroad  Company,  in 
an  action  by  Olga  de  Maluta  Fraloff  to  recover  the  value  of 
certain  articles  of  wearing-apparel  alleged  to  have  been  taken 
from  her  trunk  while  she  was  a  passenger  upon  the  ears  of  the 

616 


EAILKOAD  CO.  v.  FEALOFF.  §  163 

company,  and  while  the  trunk  was  in  its  charge  for  transporta- 
tion as  part  of  her  baggage. 

There  was  evidence  before  the  jury  tending  to  establish  the 
following  facts: 

The  defendant  in  error,  a  subject  of  the  Czar  of  Russia,  pos- 
sessing large  wealth,  and  enjoying  high  social  position  among 
her  own  people,  after  traveling  in  Europe,  Asia,  and  Africa, 
spending  some  time  in  London  and  Paris,  visited  America  in 
the  year  1869,  for  the  double  purpose  of  benefiting  her  health 
and  seeing  this  country.  She  brought  with  her  to  the  United 
States  six  trunks  of  ordinary  travel-worn  appearance,  contain- 
ing a  large  quantity  of  wearing-apparel,  including  many  ele- 
gant, costly  dresses,  and  also  rare  and  valuable  laces,  which  she 
had  been  accustomed  to  wear  upon  different  dresses  when  on 
visits,  or  frequenting  theaters,  or  attending  dinners,  balls,  and 
receptions.  A  portion  of  the  laces  was  made  by  her  ancestors 
upon  their  estates  in  Russia.  After  remaining  some  weeks  in 
the  city  of  New  York,  she  started  upon  a  journey  westward, 
going  first  to  Albany,  and  taking  with  her,  among  other 
things,  two  of  the  trunks  brought  to  this  country.  Her  ulti- 
mate purpose  was  to  visit  a  warmer  climate,  and,  upon  reaching 
Chicago,  to  determine  whether  to  visit  California,  New  Orleans, 
Havana,  and  probably  Rio  Janeiro.  After  passing  a  day.  or  so 
at  Albany,  she  took  passage  on  the  cars  of  the  New  York  Cen- 
tral and  Hudson  River  Railroad  Company  for  Niagara  Falls, 
delivering  to  the  authorized  agents  of  the  company  for  trans- 
portation as  her  baggage  the  two  trunks  above  described,  which 
contained  the  larger  portion  of  the  dress-laces  brought  with 
her  from  Europe.  Upon  arriving  at  Niagara  Falls  she  ascer- 
tained that  one  of  the  trunks,  during  transportation  from  Al- 
bany to  the  Falls,  had  been  materially  injured,  its  locks  broken, 
its  contents  disturbed,  and  more  than  two  hundred  yards  of 
dress-lace  abstracted  from  the  trunk  in  which  it  had  been  care- 
fully placed  before  she  left  the  city  of  New  York.  The  company 
declined  to  pay  the  sum  demanded  as  the  value  of  the  missing 
laces;  and,  having  denied  all  liability  therefor,  this  action  was 
instituted  to  recover  the  damages  which  the  defendant  in  error 
claimed  to  have  sustained  by  reason  of  the  loss  of  her  property. 

Upon  the  firal  trial  of  the  case  in  1873,  the  jury,  being 
unable  to  agree,  was  discharged.  A  second  trial  took  place  in 
the  year  1875.  Upon  the  conclusion  of  the  evidence  in  chief 
at  the  last  trial,  the  company  moved  a  dismissal  of  the  action^ 
and,  at  the  same  time,  submitted  numerous  instructions  which 
it  asked  to  be  then  given  to  the  jury,  among  which  was  one 
peremptorily  directing   a  verdict  in  its   favor.     That  motion 

617 


§  163  OF  CAEKIEKS  OF  PASSENGERS. 

was  overruled,  and  the  court  declined  to  instruct  the  jury  as 
requested.  Subsequently,  upon  the  conclusion  of  the  evidence 
upon  both  sides,  the  motion  for  a  peremptory  instruction  in 
behalf  of  the  company  was  renewed,  and  again  overruled.  The 
court  thereupon  gave  its  charge,' to  which  the  company  filed 
numerous  exceptions,  and  also  submitted  written  requests,  forty- 
two  in  number,  for  instructions  to  the  jury.  The  court  refused 
to  instruct  the  jury  as  asked,  or  otherwise  than  as  shown  in  its 
own  charge.  To  the  action  of  the  court  in  the  several  respects 
indicated  the  company  excepted  in  due  form.  The  jury  returned 
a  verdict  against  the  company  for  the  sum  of  $10,000,  although 
the  evidence,  in  some  of  its  aspects,  placed  the  value  of  the  miss- 
ing laces  very  far  in  excess  of  that  amount. 

It  would  extend  this  opinion  to  an  improper  length,  and  could 
serve  no  useful  purpose,  were  we  to  enter  upon  a  discussion  of 
the  various  exceptions,  unusual  in  their  number,  to  the  action 
of  the  court  in  the  admission  and  exclusion  of  evidence,  as  well 
as  in  refusing  to  charge  the  jury  as  requested  by  the  company. 
Certain  controlling  propositions  are  presented  for  our  consid- 
eration, and  upon  their  determination  the  substantial  rights  of 
parties  seem  to  depend.  If,  in  respect  of  these  propositions, 
no  error  was  committed,  the  judgment  should  be  affirmed  without 
any  reference  to  points  of  a  minor  and  merely  technical  nature, 
which  do  not  involve  the  merits  of  the  case,  or  the  just  rights 
of  the  parties. 

In  behalf  of  the  company  it  is  earnestly  claimed  that  the 
court  erred  in  not  giving  a  peremptory  instruction  for  a  ver- 
dict in  its  behalf.  This  position,  however,  is  wholly  untenable. 
Had  there  been  no  serious  controversy  about  the  facts  and  had 
the  law  upon  the  undisputed  evidence  precluded  any  recovery 
whatever  against  the  company,  such  an  instruction  would  have 
been  proper.  1  Wall.  369 ;  11  How.  372 ;  19  id.  269 ;  22  Wall.  121. 
The  court  could  not  have  given  such  an  instruction  in  this  case 
without  usurping  the  functions  of  the  jury.  This  will,  however, 
more  clearly  appear  from  what  is  said  in  the  course  of  this 
opinion. 

The  main  contention  of  the  company,  upon  the  trial  below, 
was  that  good  faith  required  the  defendant  in  error,  when 
delivering  her  trunks  for  transportation,  to  inform  its  agents 
of  the  peculiar  character  and  extraordinary  value  of  the  laces 
in  question;  and  that  her  failure  in  that  respect,  whether  in- 
tentional or  not,  was,  in  itself,  a  fraud  upon  the  carrier,  which 
should  prevent  any  recovery  in  this  action. 

The  circuit  court  refused,  and,  in  our  opinion,  rightly,  to 
so  instruct  the  jury.     We  are  not  referred  to  any  legislative 

618 


EAILEOAD  CO.  v.  FRALOFF.  §  163 

enactment  restricting  or  limiting  the  responsibility  of  passen- 
ger carriers  by  land  for  articles  carried  as  baggage.  Nor  is 
it  pretended  that  the  plaintiff  in  error  had,  at  the  date  of 
these  transactions,  established  or  promulgated  any  regulation 
as  to  the  quantity  or  the  value  of  baggage  which  passengers 
upon  its  cars  might  carry,  without  extra  compensation,  under 
the  general  contract  to  carry  the  person.  Further,  it  is  not 
claimed  that  any  inquiry  was  made  of  the  defendant  in  error, 
either  when  the  trunks  were  taken  into  the  custody  of  the 
carrier,  or  at  any  time  prior  to  the  alleged  loss,  as  to  the  value 
of  their  contents.  It  is  undoubtedly  competent  for  carriers  of 
passengers,  by  specific  regulations,  distinctly  brought  to  the 
knowledge  of  the  passenger,  which  are  reasonable  in  their  char- 
acter and  not  inconsistent  with  any  statute  or  their  duties  to 
the  public,  to  protect  themselves  against  liability,  as  insurers, 
for  baggage  exceeding  a  fixed  amount  in  value,  except  upon 
additional  compensation,  proportioned  to  the  risk.  And  in  order 
that  such  regulations  may  be  practically  effective,  and  the  car- 
rier advised  of  the  full  extent  of  its  responsibility,  and  conse- 
quently, of  the  degree  of  caution  necessary  upon  its  part,  it 
may  rightfully  require,  as  a  condition  precedent  to  any  contract 
for  the  transportation  of  baggage,  information  from  the  passen- 
ger as  to  its  value ;  and  if  the  value  thus  disclosed  exceeds  that 
which  the  passenger  may  reasonably  demand  to  be  transported 
as  baggage  without  extra  compensation,  the  carrier,  at  its  option, 
can  make  such  additional  charge  as  the  risk  fairly  justifies. 
It  is  also  undoubtedly  true  that  the  carrier  may  be  discharged 
from  liability  for  the  full  value  of  the  passenger 's  baggage,  if  the 
latter,  by  false  statements,  or  by  any  device  or  artifice,  puts  off 
inquiry  as  to  such  value,  whereby  is  imposed  upon  the  carrier 
responsibility  beyond  what  it  was  bound  to  assume  in  considera- 
tion of  the  ordinary  fare  charged  for  the  transportation  of  the 
person.  But  in  the  absence  of  legislation  limiting  the  responsi- 
bility of  carriers  for  the  baggage  of  passengers;  in  the  absence 
of  reasonable  regulations  upon  the  subject  by  the  carrier,  of 
which  the  passenger  has  knowledge ;  in  the  absence  of  inquiry  of 
the  passenger  as  to  the  value  of  the  articles  carried,  under  the 
name  of  baggage,  for  his  personal  use  and  convenience  when 
traveling;  and  in  the  absence  of  conduct  upon  the  part  of  the 
passenger  misleading  the  carrier  as  to  the  value  of  his  baggage, 
— the  court  cannot,  as  matter  of  law,  declare,  as  it  was  in  effect 
requested  in  this  case  to  do,  that  the  mere  failure  of  the  passen- 
ger, unasked,  to  disclose  the  value  of  his  baggage  is  a  fraud  upon 
the  carrier,  which  defeats  all  right  of  recovery.  The  instructions 
asked  by  the  company  virtually  assumed  that  the  general  law 

619 


§  163  OF  CAREIEES  OF  PASSENGERS. 

governing,  the  rights,  duties,  and  responsibilities  of  passenger 
carriers  described  a  definite,  fixed  limit  of  value,  beyond 
which  the  carrier  was  not  liable  for  baggage,  except  under  a 
special  contract  or  upon  previous  notice  as  to  value.  We  are 
not,  however,  referred  to  any  adjudged  case,  or  to  any  elemen- 
tary treatise  which  sustains  that  proposition,  without  qualifica- 
tion. In  the  very  nature  of  things,  no  such  rule  could  be 
established  by  the  courts  in  virtue  of  any  inherent  power  they 
possess.  The  quantity  or  kind  or  value  of  the  baggage  which 
a  passenger  may  carry  under  the  contract  for  the  transporta- 
tion of  his  person  depends  upon  a  variety  of  circumstances 
which  do  not  exist  in  every  case.  -  "That  which  one  trav- 
eler," says  Erie,  C.  J.,  in  Philpot  v.  Northwestern  Railway  Co., 
(19  C.  B.  N.  s.  321),  "would  consider  indispensable,  would  be 
deemed  superfluous  and  unnecessary  by  another.  But  the  gen- 
eral habits  and  wants  of  mankind  will  be  taken  in  the  mind 
of  the  carrier  when  he  receives  a  passenger  for  conveyance." 
Some  of  the  cases  seem  to  announce  the  broad  doctrine  that, 
by  general  law,  in  the  absence  of  legislation,  or  special  regula- 
tions by  the  carrier,  of  the  character  indicated,  a  passenger 
may  take,  without  extra  compensation,  such  articles  adapted  to 
personal  use  as  his  necessities,  comfort,  convenience,  or  even 
gratification  may  suggest ;  and  that  whatever  may  be  the  quan- 
tity or  value  of  such  articles,  the  carrier  is  responsible  for  all 
damage  or  loss  to  them,  from  whatever  source,  unless  from  the 
act  of  God  or  the  public  enemy.  But  that,  in  our  judgment, 
is  not  an  accurate  statement  of  the  law.  "Whether  articles  of 
wearing-apparel,  in  any  particular  case,  constitute  baggage,  as 
that  term  is  understood  in  the  law,  for  which  the  carrier  is 
responsible  as  insurer,  depends  upon  the  inquiry  whether  they 
are  such  in  quantity  and  value  as  passengers  under  like  cir- 
cumstances ordinarily  or  usually  carry  for  personal  use  when 
traveling.  "The  implied  undertaking,"  says  Mr.  Angell,  "of 
the  proprietors  of  stage-coaches,  railroads,  and  steamboats  to 
carry  in  safety  the  baggage  of  passengers  is  not  unlimited,  and 
cannot  be  extended  beyond  ordinary  baggage,  or  such  baggage 
as  a  traveler  usually  carries  with  him  for  his  personal  conven- 
ience." Angell,  Carriers,  sect.  115.  In  Hannibal  Eailroad  v. 
Swift,  12  Wall.  272,  this  court,  speaking  through  Mr.  Justice 
Field,  said  that  the  contract  to  carry  the  person  "only  implies 
an  undertaking  to  transport  such  a  limited  quantity  of  articles 
as  are  ordinarily  taken  by  travelers  for  their  personal  use 
and  convenience,  such  quantity  depending,  of  course,  upon  the 
station  of  the  party,  the  object  and  length  of  his  journey, 
and  many  other  considerations."     To  the  same  efi'ect  is  a  deci- 

620 


EAILEOAD  CO.  v.  FEALOFF.  §  163 

sion  of  the  Queen's  Bench  in  Macrow  v.  Great  "Western  Railway 
Co.,  Law  Rep.  6  Q.  B.  121,  where  Chief  Justice  Cockburn 
announced  the  true  rule  to  be  ''that  whatever  the  passenger 
takes  with  him  for  his  personal  use  or  convenience,  according 
to  the  habits  or  wants  of  the  particular  class  to  which  he  be- 
longs, either  with  reference  to  the  immediate  necessities  or  to 
the  ultimate  purpose  of  the  journey,  must  be  considered  as 
personal  luggage."  2  Parsons,  Contr.,  199.  To  the  extent, 
therefore,  that  the  articles  carried  by  the  passenger  for  his  per- 
sonal use  exceed  in  quantity  and  value  such  as  are  ordinarily 
or  usually  carried  by  passengers  of  like  station  and  pursuing 
like  journeys,  they  are  not  baggage  for  which  the  carrier,  by 
general  law,  is  responsible  as  insurer.  In  cases  of  abuse  by  the 
passenger  of  the  privilege  which  the  law  gives  him,  the  car- 
rier secures  such  exemption  from  responsibility,  not,  however, 
because  the  passenger,  uninquired  of,  failed  to  disclose  the 
character  and  value  of  the  articles  carried,  but  because  the 
articles  themselves,  in  excess  of  the  amount  usually  or  ordi- 
narily carried,  under  like  circumstances,  would  not  constitute 
baggage  within  the  true  meaning  of  the  law.  The  laces  in 
question  confessedly  constituted  a  part  of  the  wearing-apparel 
of  the  defendant  in  error.  They  were  adapted  to  and  exclu- 
sively designed  for  personal  use,  according  to  her  convenience, 
comfort,  or  tastes,  during  the  extended  journey  upon  which  she 
had  entered.  They  were  not  merchandise,  nor  is  there  any 
evidence  that  they  were  intended  for  sale  or  for  purposes  of 
business.  Whether  they  were  such  articles  in  quantity  and 
value  as  passengers  of  like  station  and  under  like  circumstances 
ordinarily  or  usually  carry  for  their  personal  use,  and  to  sub- 
serve their  convenience,  gratification,  or  comfort  while  trav- 
eling, was  not  a  pure  question  of  law  for  the  sole  or  final 
determination  of  the  court,  but  a  question  of  fact  for  the  juiy, 
under  proper  guidance  from  the  court  as  to  the  law  governing 
such  cases.  It  was  for  the  jury  to  say  to  what  extent,  if  any, 
the  baggage  of  defendant  in  error  exceeded  in  quantity  and 
value  that  which  was  usually  carried  without  extra  compensa- 
tion, and  to  disallow  any  claim  for  such  excess. 

Upon  examining  the  carefully  guarded  instructions  given  to 
the  jury,  we  are  unable  to  see  that  the  court  below  omitted 
any  thing  essential  to  a  clear  comprehension  of  the  issues,  or 
announced  any  principle  or  doctrine  not  in  harmony  with 
settled  law.  After  submitting  to  the  jury  the  disputed  ques- 
tion as  to  whether  the  laces  were,  in  fact,  in  the  trunk  of  the 
defendant  in  error,  when  delivered  to  the  company  at  Albany 
for  transportation  to  Niagara  Falls,  the  court  charged  the  jury, 

621 


^  1G3  OF  CARRIERS  OF  PASSENGEES. 

in  substance,  that  every  traveler  was  entitled  to  provide  for 
the  exigencies  of  his  journey  in  the  way  of  baggage,  was  not 
limited  to  articles  which  were  absolutely  essential,  but  could 
carry  such  as  were  usually  carried  by  persons  traveling,  for 
their  comfort,  convenience,  and  gratification  upon  such  jour- 
neys; that  the  liability  of  carriers  could  not  be  maintained  to 
the  extent  of  making  them  responsible  for  such  unusual  articles 
as  the  exceptional  fancies,  habits,  or  idiosyncrasies  of  some 
particular  individual  may  prompt  him  to  carry ;  J;hat  their  re- 
sponsibility as  insurers  was  limited  to  such  articles  as  it  was 
customary  or  reasonable  for  travelers  of  the  same  class,  in  gen- 
eral, to  take  for  such  journeys  as  the  one  which  was  the  sub- 
ject of  inquiry,  and  did  not  extend  to  those  which  the  caprice 
of  a  particular  traveler  might  lead  that  traveler  to  take;  that 
if  the  company  delivered  to  the  defendant  in  error,  aside  from 
the  laces  in  question,  baggage  which  had  been  carried,  and 
which  was  sufficient  for  her  as  reasonable  baggage,  within  the 
rules  laid  down,  she  was  not  entitled  to  recover;  that  if  she 
carried  the  laces  in  question  for  the  purpose  of  having  them 
safely  kept  and  stored  by  railroad  companies  and  hotel-keepers, 
and  not  for  the  purpose  of  using  them,  as  occasion  might 
require,  for  her  gratification,  comfort,  or  convenience,  the  com- 
pany was  not  liable ;  that  if  any  portion  of  the  missing  articles 
were  reasonable  and  proper  for  her  to  carry,  and  all  was  not, 
they  should  allow  her  the  value  of  that  portion. 

Looking  at  the  whole  scope  and  bearing  of  the  charge,  and 
interpreting  what  was  said,  as  it  must  necessarily  have  been  un- 
derstood both  by  the  court  and  jury,  we  do  not  perceive  that 
any  error  was  committed  to  the  prejudice  of  the  company,  or 
of  which  it  can  complain.  No  error  of  law  appearing  upon  the 
record,  this  court  cannot  reverse  the  judgment  because,  upon 
examination  of  the  evidence,  we  may  be  of  the  opinion  that  the 
jury  should  have  returned  a  verdict  for  a  less  amount.  If  the 
jury  acted  upon  a  gross  mistake  of  facts,  or  were  governed  by 
some  improper  influence  or  bias,  the  remedy  therefor  rested 
with  the  court  below,  under  its  general  power  to  set  aside  the 
verdict.  But  that  court  finding  that  the  verdict  was  abun- 
dantly sustained  by  the  evidence,  and  that  there  was  no  ground 
to  suppose  that  the  jury  had  not  performed  their  duty  impar- 
tially and  justly,  refused  to  disturb  the  verdict,  and  overruled 
a  motion  for  new  trial.  Whether  its  action,  in  that  particular, 
was  erroneous  or  not,  our  power  is  restricted  by  the  Constitu- 
tion to  the  determination  of  the  questions  of  law  arising  upon 
the  record.  Our  authority  does  not  extend  to  a  re-examination 
of  facts  which  have  been  tried  by  the  jury  under  instructions 

622 


KINSLEY  V.  L.  S.  &  M.  S.  R.  E.  CO.  §§  163,  IG  t 

correctly  defining  the  legal  rights  of  parties.  Parsons  v.  Bed- 
ford, 3  Pet.  446;  21  How.  167;  Insurance  Company  v.  Folsom, 
18  Wall.  249. 

(Omitting  a  reference  to  a  statute.)     Judgment  affirmed. 


164.     KINSLEY  V.  LAKE  SHORE  &  MICHIGAN  SOUTH- 
ERN RAILROAD  CO., 

125  Mass.  54;  28  Am.  R.  200.     1878. 

Action  for  loss  of  a  hand-bag  and  contents.  Plaintiff,  a  pas- 
senger on  defendant's  railroad,  had  purchased  a  ticket  to  ride 
in  the  sleeping  car  "China"  attached  to  the  train.  At  Toledo 
he  left  the  car  for  dinner,  and  being  informed  by  an  employee 
in  the  car  that  his  baggage  would  be  safe  he  left  it  in  the  car. 
On  his  return  he  found  the  China  had  been  taken  out  of  the 
train  and  his  baggage  had  been  removed  to  another  car,  except 
the  hand-bag,  which  was  missing.  Defendant  sought  to  escape 
liability  by  showing  that  the  China  was  owned  and  con- 
trolled by,  and  was  in  the  care  of,  the  employees  of  the  sleeping 
car  company,  and  was  not  under  the  management  of  the  rail- 
road company.  The  judge  ruled  this  no  defense,  and  ordered 
judgment  for  plaintiff.    To  this  defendants  excepted. 

Gray,  C.  J.  Although  a  railroad  corporation  is  not  respon- 
sible as  a  common  carrier  for  an  article  of  personal  baggage  kept 
by  a  passenger  exclusively  within  his  own  control,  it  is  liable  for 
the  loss  of  such  an  article  by  the  negligence  of  the  corporation 
or  its  agents  or  servants,  and  without  fault  of  the  passenger. 
Clark  V.  Burns,  118  Mass.  275,  19  Am.  Rep.  456;  Bergheim 
V.  Great  Eastern  Railway,  3.  C.  P.  D.  221. 

In  the  present  case,  we  need  not  consider  whether  the  evidence 
introduced  at  the  trial  would  justify  the  inference  that  the  de- 
fendant had  assumed  the  custody  and  control  of  the  plaintiff's 
bag  as  a  common  carrier ;  for  it  was  clearly  sufficient  to  warrant 
the  judge,  by  whom  the  case  was  tried  without  a  jury,  in  finding 
that  the  bag  was  lost,  without  any  fault  of  the  plaintiff,  by  neg- 
ligence on  the  part  of  the  defendant  in  removing  or  undertaking 
to  remove  the  plaintiff's  baggage  to  another  car  in  his  absence 
and  without  notice  to  him. 

The  plaintiff's  contract  of  transportation  was  with  the  de- 
fendant alone.  The  fact  that  the  car  was  not  owned  by  the 
defendant,  but  was  used  on  its  road  under  a  contract  with  other 

623 


§  §  164,  165  OF  CAEEIERS  OF  PASSENGERS. 

parties,  who  furnished  conductors  and  servants  to  take  charge 
of  such  ears,  there  being  no  evidence  that  the  plaintiff  knew  of 
that  contract,  or  had  any  notice  that  the  car  was  not  owned 
^  by  the  defendant  and  under  its  exclusive  control,  could  not 
affect  the  measure  of  the  defendant's  liability  to  the  plaintiff. 
Exceptions  overruled. 


165.    CHICAGO,  ROCK  ISLAND  &  PACIFIC  RAILROAD 

CO.  V.  BOYCE, 

73  III.  510;  24  Am.  R.  268.     1874. 

Action  for  value  of  baggage.  Boyce  was  traveling  with  a 
trunk  and  box  checked  by  defendants  as  baggage.  On  account 
of  ill  health  he  stopped  over  in  Iowa  five  days,  but  his  baggage 
went  on  to  Chicago.  As  it  was  not  claimed,  it  was  stored  in 
the  company's  warehouse,  where  it  burned  in  the  great  Chicago 
fire,  without  fault  on  the  part  of  the  railroad.  Judgment  for 
plaintiff. 

Scott,  J.  (After  stating  the  facts.)  Under  instructions  from 
the  court,  the  jury  found  a  special  verdict,  in  which  they  enu- 
merate the  several  articles  which  they  find  were  contained  in 
the  trunk,  and  then  find  their  respective  values.  The  list  con- 
tains several  articles,  the  value  of  which  was  included  in  the 
verdict,  and  which  could  not,  with  any  degree  of  accuracy,  be 
said  to  constitute  any  part  of  a  gentleman's  traveling  baggage 
— such  as  "one  sacque  and  muff,"  "two  silver  napkin-rings," 
and  perhaps  some  other  articles,  the  whole  amounting,  in  the 
aggregate,  to  something  over  $40.  To  this  extent,  the  finding 
of  the  jury,  in  any  view  of  the  law  that  can  be  taken,  is  erro- 
neous. 

But  this  is  not  the  principal  question  in  the  case.  Another 
objection  taken  is  as  to  the  law  given  to  the  jury,  and  it  goes  to 
the  foundation  of  the  action.  The  baggage  having  arrived  at  its 
destination,  and  no  one  appearing  to  claim  it,  the  company 
caused  it  to  be  placed  in  its  warehouse,  or  baggage-room.  The 
question  arises  as  to  the  responsibility  of  the  company  after 
its  arrival,  and  before  it  was  called  for  by  the  owner. 

The  law  is  well  settled  that  the  responsibility  as  carrier  ceases 
when  the  carrier  becomes  a  mere  warehouseman,  and  from 
thenceforward  he  is  bound  to  exercise  the  same  care,  and  no 
more,  that  ordinarily  prudent  men  do  in  keeping  their  own 
goods  of  similar  kind  and  value.    AVhile  the  relation  of  common 

624 


C,  E.  I.  &  P.  K.  E.  CO.  V.  BOYCE.  §  165 

carrier  exists,  the  company  is  held  responsible  for  baggage  or 
freight  as  an  insurer,  and  the  reason  given  in  the  books  is  to 
prevent  fraud,  and  the  better  to  subserve  the  public  interests. 

But  when  does  the  liability  of  passenger  carrier  cease,  and 
such  carrier  become  mere  warehouseman  as  to  the  luggage  of 
passengers  ? 

The  rule  is  as  stated  by  text-writers,  that  the  responsibility 
continues  until  the  owner  has  had  reasonable  time  and  oppor- 
tunity to  come  and  take  away  his  baggage.  If  it  be  not  called  for 
within  such  reasonable  time,  the  company  may  store  it  in  a  se- 
cure warehouse,  and  from  thence  its  liability  as  a  carrier  ceases, 
and  that  of  warehouseman  is  assumed.  This  doctrine  is  so  well 
supported  by  authority  that  it  admits  of  no  controversy.  2  Redf . 
on  Railways,  §  171,  sub-§  3 ;  Roth  v.  Buffalo  and  State  Line  R.  R. 
Co.,  34  N.  Y.  548,  90  Am.  D.  736;  Louisville,  Cincinnati  and 
Lexington  Railroad  Company  v.  Mahan,  8  Bush,  184;  Ouimit 
V.  Henshaw  et  al.,  35  Vt.  605,  84  Am.  D.  646. 

The  difficulty  is  not  in  the  rule  as  stated,  but  in  the  determi- 
nation of  what  is  a  reasonable  time  and  opportunity  for  a  pas- 
senger to  claim  and  take  away  his  luggage.  The  impossibility 
of  stating  any  absolute  rule  on  this  subject  has  given  rise  to 
the  apparent  conflict  in  many  of  the  adjudged  cases.  It  has 
been  said,  and  we  think  with  great  force,  that  what  constitutes 
such  reasonable  time  and  opportunity  is  a  mixed  question  of 
law  and  fact,  depending  very  much  upon  the  peculiar  facts  of 
each  individual  case;  but  when  the  facts  are  undisputed  it  is 
purely  a  question  o^  law,  and  the  court  should  decide  it.  Louis- 
ville, Cincinnati  and  Lexington  Railroad  Co.  v.  Mahan;  Roth 
V.  Buffalo  and  State  Line  Railroad,  supra. 

In  the  case  we  are  considering,  the  court,  at  the  instance  of 
appellee,  instructed  the  jury  ''that  a  reasonable  time  allowed 
the  plaintiff  to  claim  his  baggage  means  such  time  as  is  reason- 
able considering  the  state  of  his  health,  and  his  ability  to  pro- 
ceed to  his  destination,  or  to  make  demand,  and  the  other  cir- 
cumstances in  the  case  proven." 

This  charge  does  not  state  the  law  correctly,  as  applicable  to 
the  facts  of  this  case.  Commonly  the  passenger  and  his  luggage 
are  carried  on  the  same  train,  and  it  is  delivered  to  him  on  the 
platform  on  his  arrival.  But  if,  for  any  reason,  not  the  fault 
of  the  company,  the  passenger  does  not  choose  to  claim  it,  the 
carrier  may  rightfully  store  it  in  a  secure  warehouse.  This  is 
not  for  the  benefit  of  the  carrier,  but  for  the  convenience  of  the 
traveler.  It  was  never  intended  that  passenger  carriers  should 
become  warehousemen  of  the  traveler's  personal  luggage.  The 
common  custom  is  to  deliver  it  immediately  upon  its  arrival  at 
40  625 


§  165  OF  CAKEIEKS  OF  PASSENGEES. 

its  destination,  on  the  platform.  It  would  be  extending  the 
liability  of  such  carriers  bej^ond  anything  required  by  public 
exigency,  or  the  necessities  of  public  interests,  to  hold  them  re- 
sponsible as  common  carriers  after  the  lapse  of  reasonable  time, 
or  after  the  traveler  has  had  a  reasonable  opportunity  to  claim 
and  take  away  his  personal  baggage,  and  unless  the  carrier  itself 
is  at  fault,  it  seems  to  us  the  passenger  ought  not  to  be  permitted 
to  extend  the  strict  and  rigid  liability  incident  to  common  car- 
riers, for  any  purposes  of  his  own  convenience,  nor  by  reason  of 
any  inevitable  accident  to  himself.  The  carrier  never  contracted 
to  carry  him  as  a  passenger  with  a  view  to  such  extended  liability 
for  his  baggage. 

It  is  sought  to  justify  the  giving  of  the  instruction  upon  the 
facts  testified  to  by  appellee,  that  his  journey  was  delayed  on 
account  of  sickness.  The  company,  it  is  contended,  consented 
to  the  delay  by  giving  him  a  "lay-over  ticket."  It  was  under 
no  legal  liability  to  give  him  such  a  ticket,  and  it  was  done  for 
the  humane  purpose  of  accommodating  the  passenger.  He  was 
physically  unable  to  prosecute  his  journey.  This  was  certainly 
no  fault  of  the  company,  and  if  the  carrier  was  willing  to  oblige 
him  in  his  extremity,  its  responsibility  ought  not,  for  that  rea- 
son, to  be  enlarged.  Had  his  sickness  continued  for  any  con- 
siderable period,  it  seems  unreasonable  that  the  company,  during 
all  the  time  it  should  be  compelled,  in  consequence  thereof,  to 
keep  his  luggage  in  its  warehouse,  should  be  held  to  the  strict 
and  rigid  liability  of  a  common  carrier.  We  think  the  objection 
to  this  evidence  offered  by  appellee  ought  to  have  been  sus- 
tained; its  production  could  only  mislead  the  jury;  it  did  not 
tend  to  show  it  was  through  any  neglect  or  default  of  the  com- 
pany that  it  was  compelled  to  place  appellee's  luggage  in  its 
warehouse;  and  if  it  proves  anything,  it  is  that  the  company 
gave  him  the  "lay-over  ticket"  on  the  implied  condition  the 
passenger  would  consent  that  the  carrier  might  place  his  bag- 
gage, on  its  arrival,  in  its  warehouse,  using  ordinary  care  for 
its  preservation.  This  fact  would  relieve  the  company  from 
all  responsibility  as  a  common  carrier.  Had  the  passenger  been 
at  Chicago,  and  for  his  personal  convenience  had  his  baggage 
placed  in  the  company's  warehouse,  this  fact  would  relieve  the 
carrier  from  all  responsibility  except  for  gross  carelessness  as 
a  gratuitous  bailee.  Minor  v.  Chicago  and  Northwestern  Rv. 
Co.,  19  Wis.  40,  88  Am.  D.  670. 

The  case  of  Roth  v.  The  Buffalo  and  State  Line  Railroad  Co., 
supra,  cited  by  counsel  for  appellee,  as  supporting  his  view  of 
the  law,  is  not  in  conflict  with  the  views  here  expressed,  so  far 
as  the  decision  itself  is  concerned.    The  judge  who  delivered  the 

626 


C,  E.  I.  &  P.  R.  E.  CO.  V.  BOYCE.  §  165 

opinion  of  the  court  stated  some  hypotheticnl  cases  which  might 
arise  in  the  future,  to  which  the  principles  of  that  decision 
should  not  apply.  It  was  simply  a  passing  remark,  not  the  de- 
liberate opinion  of  the  court,  and  for  that  reason  we  are  not 
inclined  to  give  it  the  weight  of  an  authoritative  decision. 

We  are  satisfied  the  verdict  in  this  case  is  contrary  to  the  law 
and  the  evidence,  and  the  judgment  will  accordingly  be  reversed. 


ezti 


CHAPTER  XY. 

OF  OTHER  CARRIERS. 

166.     FOSTER  V.  ^lETTS, 

55  Miss.  77:  30  Am.  E.  5uL     1377. 

Action  on  a  promissoiy  note  given  by  defendants,  contractors 
for  carrj-ing  United  States  mail,  to  recompense  plaintiff  for  his 
money  stolen  from  the  mail  by  an  employee  of  defendants. 
Defendants  demurred  below.    Demurrer  sustained. 

Campbell,  J.  The  post-office  department  is  a  branch  of  the 
government,  instituted  for  public  convenience.  The  government 
of  the  United  States  has  undertaken  the  business  of  conducting 
the  transmission  and  distribution  and  delivery  of  all  mail-mat- 
ter. The  government  is  the  carrier  of  the  mails.  It  carries 
them  by  the  aid  of  agents  it  contracts  with  for  this  service. 
Contractors  for  carrying  the  mail  are  the  agents  of  the  govern- 
ment in  the  business  undertaken  by  them.  The  sender  of  mail- 
matter  has  no  contract  with  the  carrier  of  the  mail-bags,  and 
does  not  commit  his  mail-matter  to  him,  but  to  the  government, 
which  has  undertaken  to  receive,  carry,  and  deliver  it.  The 
contractor  for  carrying  the  mail  is  neither  a  common  carrier  nor 
a  private  carrier.  He  does  not  carry  for  individuals,  nor  re- 
ceive any  compensation  from  them.  He  has  no  knowledge  of  the 
mail-matter  he  carries,  and  no  control  over  it,  except  to  obey 
the  instructions  of  the  post-office  department.  Letters  and  pack- 
ets are  inclosed  in  government  mail-bags,  secured  by  locks  pro- 
vided by  the  government,  and  at  all  times  subject  to  the  super- 
vision and  control  of  the  officers  and  agents  of  the  government 
in  the  post-office  department,  who  may  open  the  mail-bags  and 
inspect  the  mail-matter  they  contain  at  will.  Contractors  for 
carrjnng  the  mail  are  instruments  of  government  whereby  it 
performs  the  function  of  transmitting  mail-matter  from  place 
to  place  in  the  execution  of  this  part  of  its  business. 

Postmasters  are  necessary  agents  for  the  performance  of  the 
business  of  the  post-office  department,  and  those  who  carry  the 
mail  from  place  to  place  are  equally  necessary,  and  engaged  in 
the  business  of  the  government. 

628 


FOSTER  V.  METTS.  §  166 

A  rider  or  driver  employed  by  the  contractor  for  carrying  the 
mails  is  an  assistant  about  the  business  of  the  governipent.  Al- 
though employed  and  paid,  and  liable  to  be  discharged  at  pleas- 
ure by  the  contractor,  the  rider  or  driver  is  not  engaged  in  the 
private  service  of  the  contractor,  but  is  employed  in  the  public 
service.    U.  S.  v.  Belew,  2  Brocken  (U.  S.),  280. 

A  carrier  of  the  mail  is  required  by  law  to  be  of  a  certain  age, 
to  take  a  prescribed  oath,  is  exempted  from  militia  and  jury  ser- 
vice, and  is  liable  to  certain  penalties  for  violations  of  duty,  as 
well  as  subject  to  be  discharged  from  service  by  any  postmaster 
in  a  certain  contingency.  He  is  a  subordinate  agent  of  the  gov- 
ernment, whose  emplojTQent  is  contemplated  and  provided  for 
by  the  government  in  contracting  to  have  the  mail  carried.     Id. 

Contractors  for  carrying  the  mail  are  responsible  for  their  own 
misfeasances,  but  not  for  those  of  their  assistants.  The  assist- 
ants must  answer  for  themselves.  The  only  security  for  the 
safe  transmission  of  packages  by  mail  is  the  safeguards  thrown 
around  it  by  the  regulations  of  the  government,  which  announce 
that  all  valuables  sent  by  mail  shall  be  at  the  risk  of  the  owner. 
All  that  the  government  promises  in  case  of  loss  of  money  or 
other  valuables  from  the  mail  is  to  endeavor  to  recover  it  and 
to  punish  the  offender. 

The  duty  of  contractors  to  carry  the  mail  is  to  carry  it  from 
place  to  place,  subject  to  the  regulations  of  the  post-office  of- 
ficials. Their  obligation  is  to  the  government.  They  and  their 
assistants  are  agents  of  the  government,  and  subject  to  the  rule 
of  law  applicable  in  such  cases.  Story  on  Agency,  §§  313,  319 
n,  321 ;  Shearm.  &  Redf .  on  Neg.,  §  177. 

It  is  well  settled  that  postmasters  are  not  liable  for  losses 
occasioned  by  the  sub-agents,  clerks  and  servants  employed  under 
them,  unless  they  are  guilty  of  negligence  in  not  selecting  persons 
of  suitable  skill,  or  in  not  exercising  a  reasonable  superintend- 
ence and  vigilance  over  their  conduct.  Story  on  Agency,  §  319 
a;  Storj^  on  Bail.,  §  463;  Wilson  v,  Beverly,  1  Am.  Lead.  Cas. 
785 ;  Schroyer  v.  Lynch,  8  "Watts,  453 ;  Wiggins  v.  Hathaway, 
6  Barb.  632 ;  Keenan  v.  Southworth,  110  :\Iass.  474,  14  Am.  R. 
613 ;  Whart.  on  Neg.,  §  292 ;  Shearm.  &  Redf.  on  Neg.,  §  180. 

As  remarked  before,  carrying  the  mail  is  just  as  necessary, 
and  as  much  part  of  the  business  of  the  government  as  the  ser- 
vice rendered  at  the  offices  by  postmasters;  and  those  employed 
about  carrying  the  mail  are  as  much  the  agents  of  the  govern- 
ment as  are  postmasters  and  their  clerks  and  assistants.  The 
true  test  of  the  character  of  a  person  is,  not  who  appoints  or  pays 
or  may  dismiss  him,  but  whether  or  not  he  is  about  a  public 

629 


§  1G6  OF  THE  POST-OFFICE. 

employment  or  a  private  service.  1  Am.  Lead.  Cas.  621;  Story 
on  Agency,  §  319  et  seq. 

In  Conwell  v.  Voorhees,  13  Ohio  523,  42  Am.  D.  206,  and 
Hutcliins  V.  Brackett,  2  Foster  (22  N.  H.)  252,  53  Am.  D.  248, 
it  was  decided  that  contractors  for  carrying  the  mail  are  not 
responsible  to  the  owner  of  a  letter  containing  money  trans- 
mitted by  mail  and  lost  by  the  carelessness  of  the  agent  of  the 
contractors  carrying  the  mail.  The  rules  applicable  to  agents 
of  the  public  were  applied.  And  although  the  doctrine  of  these 
cases  is  criticised  in  Shearm.  &  Redf.  on  Neg.,  §  180,  and  has 
been  disputed  in  Sawyer  v.  Corse,  17  Gratt.  230,  we  adopt  it 
as  the  better  view. 

In  this  case  the  money  was  stolen  by  the  mail-carrier.  As  to 
that,  he  certainly  was  not  the  agent  of  the  contractors  for  whom 
he  was  riding,  and  if  they  were  liable  for  his  acts  within  the 
scope  of  his  employment,  they  were  not  liable  for  his  willful 
wrongs  and  crimes.  McCoy  v.  McKowen,  26  Miss.  487,  59  Am. 
D.  264;  New  Orleans  etc.  R.  R.  Co.  v.  Harrison,  48  Miss.  112, 
12  Am.  R.  356 ;  Foster  v.  Essex  Bank,  17  Mass.  479,  9  Am.  D. 
168;  Wiggins  v.  Hathaway,  6  Barb.  632;  Story  on  Agency, 
§  309. 

As  the  defendants  in  error  were  not  liable  for  the  money  "ex- 
tracted" from  the  mail  by  the  carrier,  they  did  not  make  them- 
selves liable  by  giving  their  promissory  note  for  it.  It  is  without 
consideration.  The  compromise  of  doubtful  rights  is  a  sufficient 
consideration  for  a  promise  to  pay  money,  but  compromise  im- 
plies mutual  concession.  Here  there  was  none  on  the  part  of 
the  payee  of  the  note.  His  forbearance  to  sue  for  what  he  could 
not  recover  at  law  or  in  equity  was  not  a  sufficient  consideration 
for  the  note.  Newell  v.  Fisher,  11  Sm.  &  M.  431 ;  Sullivan  v. 
Collins,  18  Iowa,  228 ;  Palfrey  v.  Railroad  Co.,  4  Allen,  55 ;  Allen 
V.  Prater,  35  Ala.  169;  Edwards  v.  Baugh,  11  M.  &  W.  641; 
Longridge  v.  Dorville,  5  B.  &  Aid.  117;  1  Pars,  on  Cont.  440; 
Smith  on  Cont.  157;  1  Add.  on  Cont.  28,  §  14;  1  Hill  on  Cont. 
266,  §  20. 

Judgment  affirmed. 


630 


TELEGKAPII  CO.  v.  GEJSWOLD.  §  167 

167.     TELEGRAPH  CO.  V.   GRISWOLD, 

37  Ohio  St.  301;  41  Am.  R.  500.     1881. 

Action  for  damages  for  negligence  of  a  telegraph  company  in 
transmitting  the  following  telegram: 

Woodstock,  Ontario,  December  23,  1871. 
Messrs.  Griswold  &  Dunham. 

"Will  you  give  one  fifty  for  twenty-five  hundred  at  London? 
Answer  at  once,  as  I  have  only  till  night. 

S.    W.    COWPLAND. 

This  was  an  inquiry  whether  the  sender  would  pay  $1.50  in 
gold  for  2,500  bushels  of  flaxseed  at  London,  Ontario.  As  de- 
livered the  dispatch  read  "five"  instead  of  "fifty."  The  dis- 
patch was  sent  under  the  following  agreement : 

"MONTREAL  TELEGRAPH  COMPANY,  FORM  NO.  2. 

"(Terms  and  conditions  on  which  this  and  all  other  messages 
are  received  by  this  company.) 

"In  order  to  guard  against,  and  correct  as  much  as  possible 
some  of  the  errors  arising  from  atmospheric  and  other  causes 
appertaining  to  telegraphy,  every  important  message  should 
be  repeated,  by  being  sent  back  from  the  station  at  which  the 
message  is  received  to  the  station  from  which  it  is  originally  sent. 
Half  the  usual  price  will  be  charged  for  repeating  the  message, 
and  while  this  company  in  good  faith  will  endeavor  to  send 
messages  correctly  and  promptly,  it  will  not  be  responsible  for 
errors  or  delays,  in  the  transmission  or  delivery,  nor  the  non- 
delivery of  the  repeated  messages,  beyond  two  hundred  times 
the  sum  paid  for  sending  the  messages,  unless  special  agreement 
for  insurance  be  made  in  writing,  and  the  amount  of  risk  speci- 
fied on  this  agreement  and  paid  at  the  time  of  sending  the 
message,  nor  will  the  company  be  responsible  for  any  error  or 
delay  in  the  transmission  or  delivery,  or  for  the  non-delivery 
of  any  unrepeated  message,  beyond  the  amount  paid  for  sending 
the  same,  unless  in  like  manner  specially  insured,  and  amount 
of  risk  stated  therein,  and  paid  for  at  the  time.  No  liability  is 
assumed  for  errors  in  cipher  or  obscure  messages,  nor  is  any 
liability  assumed  by  this  company  for  any  error  or  neglect  by 
any  other  company  over  whose  lines  this  message  may  be  sent  to 
reach  its  destination,  and  this  company  is  hereby  made  the  agent 
of  the  sender  of  this  message  to  forward  it  over  the  lines  ex- 
tending beyond  tho»^  of  this  company.    No  agent  or  employee 

631 


§  167  OF  TELEGEAPH  COMPANIES. 

is  allowed  to  vary  these  terms,  or  make  any  other  verbal  agree- 
ment, nor  any  promise  at  the  time  of  performance,  and  no  one 
but  a  superintendent  is  authorized  to  make  a  special  agreement 
for  insurance.  These  terms  apply  through  the  whole  course  of 
this  message  on  all  lines  by  which  it  may  be  transmitted. 

"  (Signed)  James  Dakers, 

Secretary. 
"  (Signed)  Hugh  Allen,  President." 

Judgment  for  plaintiff. 

BoYNTON,  C.  J.  As  we  have  reached  the  conclusion  that  the 
court  below  did  not  err  denying  the  motion  for  new  trial  founded 
on  the  alleged  insufficiency  of  the  evidence  to  sustain  the  verdict, 
and  as  a  review  of  the  evidence  would  serve  no  useful  purpose, 
it  only  remains  to  consider  whether  the  court  erred  in  the  in- 
structions given  to  the  jury.  The  first  question  arises  on  the  ex- 
ception to  that  portion  of  the  charge  by  which  the  jury  were  told 
that  the  special  agreement  under  which  the  message  was  sent 
did  not  relieve  the  company  from  liability  for  the  damages  re- 
sulting from  the  inaccurate  transmission  of  the  message,  if  the 
mistake  or  error  occurred  through  the  negligence  of  the  company 
or  its  agents.  There  seems  to  be  a  want  of  harmony  in  the  de- 
cided cases  on  the  point  of  the  correctness  of  this  instruction, 
and  this  no  doubt  arises,  in  some  measure  at  least,  from  the 
different  views  taken  of  the  nature  of  the  employment  in  which 
telegraph  companies  are  engaged,  and  to  some  extent  from  dif- 
ferent views  taken  of  their  rights  and  liabilities  by  courts  who 
fully  agree  upon  the  nature  of  such  employment,  but  differ  as 
to  the  extent  of  the  duties  and  obligations  that  spring  therefrom. 
In  Parks  v.  Alta  California  Tel.  Co.,  13  Cal.  422,  78  Am.  D. 
589,  the  obligations  of  telegraph  companies  were  held  to  be  the 
same  as  those  of  common  carriers,  and  consequently  that  they 
were  in  effect  insurers  of  the  safe  transmission  of  a  message, 
unless  the  transmission  was  interfered  with  by  the  act  of  God 
or  the  public  enemies.  An  early  case  in  England  held  the  same 
doctrine.  McAndrew  v.  Electric  Tel.  Co.,  33  Eng.  L.  &  Eq.  180. 
But  the  weight  of  authority  both  English  and  American  is 
clearly  the  other  way.  Ellis  v.  American  Tel.  Co.,  13  Allen,  226 ; 
Leonard  v.  New  York  etc.  Tel.  Co.,  41  N.  Y.  544,  1  Am.  R.  446 ; 
Breese  v.  United  States  Tel.  Co.,  48  N.  Y.  132,  8  Am.  R.  526; 
New  York  etc.  Tel.  Co.  v.  Dryburg,  35  Pa.  St.  298,  78  Am.  D. 
338 ;  Bartlett  v.  "Western  Union  Tel.  Co.,  62  Me.  209,  16  Am.  R. 
437 ;  Birney  v.  New  York  etc.  Tel.  Co.,  18  Md.  341,  86  Am.  D. 
607 ;  Grinnell  v.  Western  Union  Tel.  Co.,  113  Mass.  299,  18  Am. 
R.  485. 

632 


TELEGRAPH  CO.  v.  GEISWOLD.  §  167 

But  that  telegraph  companies  exercise  a  quasi  public  employ- 
ment with  duties  and  obligations  analogous  to  those  of  a  common 
carrier,  is  a  proposition  clearly  settled.  The  statute  confers 
upon  them  power  of  eminent  domain,  which  no  one  will  contend 
could  be  conferred  upon  them,  consistently  with  the  Constitu- 
tion, if  they  were  engaged  in  a  mere  private  employment  or  oc- 
cupation by  which  the  public  interests  were  not  affected. 

They  are  required  to  receive  dispatches  from  individuals  or 
corporations,  including  other  telegraph  companies,  and  to  trans- 
mit and  deliver  the  same  faithfully  and  impartially  in  the  order 
received,  except  in  a  few  specified  cases,  where  from  public  con- 
siderations certain  preferences  may  be  made.  S.  &.  S.  155. 
These  provisions,  as  well  as  the  nature  of  the  employment  itself, 
are  entirely  inconsistent  with  the  theory  that  the  business  of 
conducting  a  line  of  telegraph  is  a  mere  private  employment 
as  distinguished  from  one  carried  on  for  the  benefit  of  the  public 
at  large.  Granting  this,  it  is,  however,  contended  that  because 
the  company"  is  not  an  insurer  of  the  safe  transmission  of  a 
message,  and  is  authorized  to  make  or  adopt  such  regulations 
and  by-laws  for  the  management  of  the  business  as  it  may  deem 
proper  (1  S.  &  S.  298,  §  46),  it  cannot  be  made  liable  to  the 
plaintiff  below  beyond  the  amount  paid  for  sending  the  message, 
in  the  face  of  the  stipulation  against  liability  for  any  error  in 
an  unrepeated  message,  notwithstanding  such  error  resulted 
from  the  negligence  of  the  company's  agents  by  whom  the  mes- 
sage was  sent  over  its  wires.  To  this  proposition  we  do  not 
agree.  It  has  long  been  the  settled  law  of  this  State,  that  a 
common  carrier  cannot  either  by  special  agreement  with,  or  by 
notice  brought  home  to  the  shipper,  relieve  himself  from  liability 
for  the  consequences  of  his  negligence.  Davidson  v.  Graham, 
2  Ohio  St.  131 ;  Railroad  Company  v.  Curran,  19  id.  1. 

In  Graham  v.  Davis,  4  Ohio  St.  377,  62  Am.  D.  285,  a  case  in- 
volving the  liability  of  a  common  carrier  who  claimed  exemption 
therefrom  by  reason  of  a  special  contract  with  the  shipper — it 
was  said  that  "one  of  the  strongest  motives  for  the  faithful 
performance  of  a  public  duty  is  found  in  the  pecuniary  respon- 
sibility which  the  carrier  incurs  for  its  failure.  It  induces  him 
to  furnish  safe  and  suitable  equipments,  and  to  employ  careful 
and  competent  agents.  A  contract  therefore  with  one  to  relieve 
him  from  any  part  of  this  responsibility  reaches  beyond  the 
person  with  whom  he  contracts,  and  affects  all  who  place  their 
persons  or  property  in  his  custody.  It  is  immoral  because  it 
diminishes  the  motive  for  the  performance  of  a  high  moral  duty; 
and  it  is  against  public  policy,  because  it  takes  from  the  public 
a  part  of  the  security  they  would  otherwise  have." 

633 


§  167  OF  TELEGEAPH  COMPANIES. 

These  considerations — there  referred  to  common  carriers — ap- 
ply with  equal  force  to  those  who  furnish  the  means  of  tele- 
graphic communication  to  the  public.  Their  employment  is  not 
only  public  in  its  nature,  but  it  has  become  a  necessity  alike  to 
the  social  and  commercial  world. 

Hence,  it  is  as  true  of  them,  as  of  common  carriers,  that  any 
stipulation  or  re^ilation  that  authorizes  or  enables  them  to  se- 
cure exemption  from  liability  for  negligence,  in  the  transmission 
or  delivery  of  the  message,  reaches  far  beyond  the  person  with 
whom  they  are  dealing,  and  for  whom  the  immediate  service  is 
being  performed,  and  affects  the  entire  public.  The  cases  which 
hold  that  a  common  carrier  may  stipulate  for  immunity  from 
liability  for  mere  negligence,  all  agree  that  they  are  liable  for 
"gross  negligence."  But  just  what  this  term  means  is  not  easily 
ascertained.  There  is  authority  for  holding  it  to  be  equivalent 
to  fraud  or  intentional  wrong.  Jones  on  Bailm.  8 — 46  et  seq.  But 
a  majority  of  the  cases' would  seem  to  hold  it  to  be  a  failure  to 
exercise  ordinary  care.  In  Wilson  v.  Brett,  11  M.  &  W.  113,  it 
was  said  by  Baron  Rolfe,  that  he  "could  see  no  difference  be- 
tween gross  negligence  and  negligence;  that  it  was  the  same 
thing  with  a  vituperative  epithet."  In  Hinton  v.  Dibbin,  2 
Ad.  &  El.  (N.  S.)  646,  Lord  Denman  remarked,  that  "when  we 
find  gross  negligence  made  the  criterion  to  determine  the  liability 
of  a  common  carrier  who  has  given  the  usual  notice,  it  might 
perhaps  have  been  reasonably  expected  that  something  like  a 
definite  meaning  should  have  been  given  to  the  expression.  It 
is  believed,  however,  that  in  none  of  the  numerous  cases  upon 
this  subject  is  any  such  attempt  made,  and  it  may  well  be 
doubted  whether  between  gross  negligence  and  negligence  merely 
any  intelligible  distinction  exists."  See  also  Beal  v.  South  De- 
von Ry.  Co.,  3  H.  &  C.  337;  Austin  v.  Manchester  Ey.  Co.,  11 
Eng.  L.  &  Eq.  513;  and  comments  of  Parke,  B.,  in  Wyld  v. 
Pickford,  8  M.  &  W.  443.  In  Duff  v.  Budd,  3  Brod.  &  Bing. 
177,  it  was  held  by  Dallas,  C.  J.,  that  "gross  negligence  is 
where  the  defendant  or  his  servants  have  not  taken  the  same  care 
of  the  property  as  a  prudent  man  would  take  of  his  own.  And 
by  Best,  J.,  in  Batson  v.  Donovan,  4  B.  &  Aid.  21,  that  "they 
must  take  as  much  care  of  it  as  a  prudent  man  does  of  his  own 
property. ' ' 

In  Grill  v.  General  Iron  Screw  Collier  Company,  L.  R.,  1  C.  P. 
600,  gross  negligence  was  held  to  be  a  relative  term  and  meant 
"the  absence  of  the  care  that  was  requisite  under  the  circum- 
stances." It  was  the  absence  of  such  care  as  it  was  the  duty 
of  the  defendant  to  use  in  the  circumstances  of  the  case. 

In  Beal  v.  South  Devon  Ry.  Co.,  supra,  it  was  held  in  the  case 

634 


TELEGEAPH  CO.  v.  GRISWOLD.  §  167 

of  a  carrier  that  ' '  gross  negligence  includes  the  want  of  that  rea- 
sonable care,  skill  and  expedition  which  may  properly  be  ex- 
pected of  him."  Crompton,  J.,  remarking,  that  "for  all  prac- 
tical purposes,  the  rule  may  be  stated  to  be  that  failure  to  exer- 
cise reasonable  care,  skill  and  diligence,  is  gross  negligence."  To 
the  same  effect  is  Briggs  v.  Taylor,  28  Vt.  181,  and  Shearm.  & 
Redf.  on  Neg.,  §  16 ;  all  substantially  agreeing  with  Willes,  J., 
in  Lord  v.  Midland  Railway  Co.,  L.  R.,  2  C.  P.  344,  that  "any 
negligence  is  gross  in  one  who  undertakes  a  duty  and  fails  to 
perform  it. ' '  See  also,  Griffith  v.  Zipperwick,  28  Ohio  St.  388 ; 
and  Pennsylvania  Co.  v.  Miller,  35  id.  549,  35  Am.  Rep.  620. 

These  authorities  show  a  strong  tendency  in  the  adjudica- 
tions to  break  down  the  impracticable  distinction  between  what 
is  termed  gross  negligence,  and  ordinary  negligence,  which  some 
of  the  cases  hold  to  exist.  The  rule,  however,  in  this  State  is  well 
settled,  that  one  exercising  a  public  employment  is  liable  for 
failing  to  bring  to  the  service  he  undertakes  that  degree  of  skill 
and  care,  which  a  careful  and  prudent  man  would  under  the 
circumstances  employ ;  and  that  any  stipulation  or  regulation  by 
which  he  undertakes  to  relieve  himself  from  the  duty  to  exercise 
such  skill  and  carotin  the  performance  of  the  service,  is  contrary 
to  public  policy,  and  consequently  illegal  and  void.  In  our 
opinion  telegraph  companies  fall  within  the  operation  of  this 
rule;  and  that  in  failing  to  exercise  such  care  and  skill  in  the 
transmission  and  delivery  of  messages,  they  become  liable  for  the 
resulting  consequences,  notwithstanding  their  stipulation  to  the 
contrary.  The  right  to  make  rules  and  regulations  to  govern 
the  management  of  their  business  is  expressly  conferred  by 
statute.  But  such  rules  must  be  reasonable,  and  if  they  fail  to 
accord  with  the  demands  of  a  sound  public  policy  they  are  void. 
Railroad  Co.  v,  Lockwood,  17  Wall.  357 ;  Express  Co.  v.  Caldwell, 
21  id.  267. 

We  are  also  of  the  opinion  that  the  failure  to  transmit  and 
deliver  the  message  in  the  form  or  language  in  which  it  was  re- 
ceived, is  prima  facie  negligence,  for  which  the  company  is  liable ; 
and  that  to  exonerate  itself  from  the  liability  thus  presumptively 
arising,  it  must  show  that  the  mistake  was  not  attributable  to 
its  fault  or  negligence.  This  rule  not  only  rests  upon  sound 
reason,  but  is  well  sustained  by  well  considered  cases.  Bartlett 
V.  Western  Union  Tel.  Co.,  62  Me.  209,  16  Am.  R.  437;  Ritten- 
house  V.  Independent  Line  of  Telegraph,  44  N.  Y.  263,  4  Am. 
Rep.  673;  Tyler  etc.  v.  W.  U.  Tel.  Co.,  60  111.  421,  14  Am. 
Rep.  38;  Baldwin  v.  U.  S.  Tel.  Co.,  45  N.  Y.  744,  6  Am.  Rep. 
165;  W.  U.  Tel.  Co.  v.  Carrew,  15  Mich.  525;  De  La  Grange  v. 
S.  W,  Tel.  Co.,  25  La.  Ann.  383;  W.  U.  Tel.  Co.  v.  Meek,  49 

635 


§§  167,  168  OF  TELEGEAPH  COMPANIES. 

Ind.  53 ;  Turner  v.  Hawkeye  Tel.  Co.,  41  Iowa,  458,  20  Am.  Rep. 
605. 

If  the  error  or  mistake  is  attributable  to  atmospheric  causes 
or  disturbances,  or  to  any  cause  for  which  the  company  is  not  at 
fault,  it  is  entirely  within  its  power  to  show  it.  To  require  the 
sender  of  the  message  to  establish  the  particular  act  of  negli- 
gence, or  ferret  out  the  particular  locality  where  the  negligent 
act  occurred,  after  showing  the  mistake  itself,  would  be  to  re- 
quire in  many  cases  an  impossibility,  not  infrequently  resulting 
in  enabling  the  company  to  evade  a  just  liability.  We  are  fur- 
ther of  the  opinion  that  the  court  did  not  err  in  holding,  and 
so  instructing  the  jury,  that  the  message  received  by  the  com- 
pany for  transmission  was  not  obscure  within  the  meaning  of 
the  stipulation  in  the  agreement  under  which  the  message  was 
sent.  It  appeared  upon  its  face  that  it  related  to  a  business 
transaction,  a  transaction  involving  the  purchase  and  sale  of 
property.  The  company  was  therefore  apprised  of  the  fact  that 
a  pecuniary  loss  might  result  from  an  incorrect  transmission 
of  the  message.  Where  this  appears,  there  is  no  such  obscurity 
as  relieves  the  company  from  liability  for  negligently  failing 
to  transmit  and  deliver  the  message  in  the  language  in  which  it 
was  received.  Western  Union  Tel  Co.  v.  Wenger,  55  Penn.  St. 
262 ;  Rittenhouse  v.  Independent  Line  of  Tel.,  44  N.  Y.  265,  4 
Am.  Rep.  673 ;  Manville  v.  W.  U.  Tel.  Co.,  37  Iowa,  220,  18  Am. 
Rep.  8. 

Judgment  affirmed. 

Okey,  J.,  dissented. 


168.     TRUE  V.  INTERNATIONAL  TELEGRAPH  CO., 

60  Me.  9;  11  Am.  E.  156.     1872. 

Action  for  damages  for  the  non-delivery  of  a  telegram.  Facts 
stated  by  lower  court  for  supreme  court  to  determine  whether 
True  was  entitled  to  more  than  cost  of  the  message,  and  if  so 
to  determine  the  rule  of  damages  and  remand  the  case  for  assess- 
ment thereof. 

Kent,  J.  On  the  12th  of  January,  1870,  the  plaintiffs  re- 
ceived a  telegram  from  a  firm  in  Baltimore,  offering  to  sell  them 
a  cargo  of  corn  at  ninety  cents  per  bushel.  Whereupon  one  of 
the  plaintiffs  went  to  the  office  of  the  defendants  and  asked  for 
one  of  the  "night-message  blanks,"  and  wrote  thereon  the  fol- 
lowing telegram,  addressed  to  the  said  firm,  and  paid  forty-eight 
cents,  the  uwm.  demanded:     "To  Radcliff  &  Patterson,  Balti- 

636 


TRUE  V.  INTERNATIONAL  TEL.  CO.  §  168 

more ; — Ship  cargo  named  at  ninety ;  if  you  can  secure  freight  at 
ten,  wire  us  result.     Geo.  W.  True  &  Co." 

It  is  admitted  that  the  telegram  was  never  delivered  to  Rad- 
cliff  &  Patterson.  It  is  also  admitted  that  the  message  was  sent 
the  same  night  to  Boston,  which  is  the  western  terminus  of  de- 
fendant's line,  and  was  thence  forwarded  by  the  Franklin  Tele- 
graph Company,  with  which  the  defendants  have  a  business  con- 
nection, making  them  responsible  for  the  whole  distance ;  the 
lines  of  the  Franklin  company  extending  through  Baltimore 
to  Washington.  No  reason  is  assigned  for  the  non-delivery  of 
the  message. 

1.  The  defendants  admit  their  liability  for  the  mistake  or  de- 
lay in  the  transmission,  and  for  the  non-delivery  of  the  telegram. 
This  is  an  important  fact,  and  relieves  the  case  of  any  difficulty 
in  determining  this  primary  and  fundamental  point  of  actual 
liability. 

2.  The  defendants  claim  that  this  liability  is  limited  to  the 
repayment  of  the  forty-eight  cents.  The  plaintiffs  claim  dam- 
ages for  losses  sustained  by  them,  beyond  this  small  sum,  by 
reason  of  the  non-delivery  of  the  message. 

3.  This  claim  of  exemption,  on  the  part  of  the  telegraph  com- 
pany, is  based  upon  a  special  condition  contained  in  the  paper, 
on  which  the  message,  signed  by  the  plaintiff,  was  written. 

That  paper,  called  a  "night-message  blank,"  contained,  above 
the  written  message,  several  printed  specifications  of  the  terms 
and  conditions  on  which  these  night  messages  would  be  received 
and  forwarded.     The  last  one  was  in  these  words : 

"And  it  is  agreed  between  the  senders  of  the  following  mes- 
sage and  this  company,  that  the  company  shall  not  be  liable  for 
mistakes  or  delays  in  the  transmission  or  delivery,  or  for  non- 
delivery of  any  message,  beyond  the  amount  received  by  said 
company  for  sending  the  same. ' ' 

Then  follows,  next  above  the  written  message,  the  words, 
"Send  the  following  message,  subject  to  the  above  terms,  which 
are  agreed  to." 

There  can  be  no  doubt  that  the  abo^€I  conditions,  with  the 
assent  signified  by  the  signature  of  the  plaintiffs,  covers  this 
and  all  other  cases  of  mistake  and  non-delivery.  The  question 
is  whether  the  contract  can  legally  be  thus  limited,  and  the  de- 
fendants be  thereby  exonerated  for  all  liability,  to  the  extent 
claimed. 

There  has  been  much  discussion  in  various  cases,  as  to  the 
nature  of  this  comparatively  new  contract  for  the  transmission 
of  messages,  by  means  of  electricity;  and  the  liabilities,  limita- 
tions and  qualifications  of  this  undertaking.    It  has  been  likened 

637  ^ 


§  168  OF  TELEGRAPH  COMPANIES. 

to  the  case  of  a  common  carrier,  and  it  is  contended  by  many, 
that  all  the  strictness  of  the  common  law,  applicable  to  carriers, 
is  to  be  applied  to  telegraph  companies.  On  the  other  hand,  it 
is  contended,  that  they  are  but  simple  bailees  for  hire,  to  do  a 
certain  specified  thing — "locatio  operis  facieiidi."  It  is  clear 
that  telegraph  corporations  or  companies  exercise  a  public  em- 
ployment, or  as  said  by  C.  J.  Bigelow,  13  Allen,  226  (Ellis  v.  A. 
Telegraph  Co.),  a  quasi  public  employment;  certainly  as  much 
so  as  express  companies  or  stage-coaches  or  railroads.  They 
often  invoke  the  exercise  of  the  right  of  eminent  domain.  They 
everywhere  announce  a  readiness  to  transmit  messages  for  all 
applicants,  at  fixed  rates.  The  nature  of  their  undertaking  is 
analogous  to  that  of  carriers.  One  assumes  to  transmit  a  letter, 
the  other  a  larger,  sealed  package,  to  a  given  destination.  Both 
are  bound  by  certain  rules  of  law,  and  held  to  a  faithful  and 
exact  i:)erformance  of  a  specified  duty.  So  far  as  public  policy  is 
concerned,  there  seems  to  be  but  little  reason  for  not  holding 
both  to  the  same  rules.  It  might  be  interesting  to  follow  out 
these  analogies,  and  to  enter  upon  the  discussions  of  various 
questions,  touching  the  extent  of  the  common  law  and  statute 
liabilities  of  these  companies,  and  the  extent  of  the  right  and 
power  of  these  companies  to  limit  their  liabilities  by  notice  or 
conditions,  apparently  assented  to  by  the  other  party. 

But  the  case  before  us  does  not  require  this  extended  examina- 
tion. It  presents  to  us  the  single  question,  whether  this  condition 
is  one  which  the  company  could  rightfully  impose  upon  its  un- 
dertaking. 

We  are  satisfied  that  telegraph  companies,  like  all  other  cor- 
porations and  individuals,  may  prescribe,  adopt  and  enforce 
reasonable  rules  and  regulations  for  the  convenient  and  prompt 
and  satisfactory  performance  of  their  duties  and  obligations, 
not  inconsistent  with  that  performance.  We  think  they  may  go 
further  and  establish  stipulations  and  regulations,  to  some  ex- 
tent restraining  and  limiting  their  common-law  liabilities,  made 
known  to  and  directly  or  indirectly  assented  to  by  those  em- 
ploying them. 

We  are  equally  well  satisfied  that  there  is  a  limit  to  this  power 
of  avoidance  of  legal  liabilities.  It  does  not  rest  with  such  com- 
panies to  fix  these  conditions  absolutely,  by  which  they  may 
avoid  duties  and  responsibilities,  by  their  mere  will,  or  by  their 
views  of  self-interest,  or  desire  to  shield  the  company  or  its  offi- 
cers from  the  direct  consequences  of  neglect  or  carelessness. 

The  public  and  those  who  employ  these  agencies  to  perform  im- 
portant services  have  rights,  which  cannot  be  ignored  or  avoided 
by  stipulations  made  by  interested  parties.     When  a  company 

638 


TRUE  V.  INTERNATIONAL  TEL.  CO.  §  168 

assumes  the  position  of  offering  its  services  generally,  to  all  who 
may  apply,  under  its  character  of  a  public  corporation,  it  does 
not  stand  exactly  in  the  same  position  as  private  individuals 
contracting  in  a  single  matter,  on  terms  and  conditions  mutually 
agreed  upon  for  that  particular  case. 

The  discussions  in  the  text-books  and  in  the  decided  cases 
have  led  to  the  conclusion,  that  while,  in  the  first  instance,  the 
company  may  make  its  rules  for  the  regulation  of  its  business, 
and  for  the  limitation  of  its  liability,  those  rules  must  be  reason- 
able, in  view  of  all  the  circumstances,  and  of  the  nature  of  the 
business,  its  risks  and  responsibilities,  the  necessity  of  securing 
to  the  public,  who  may  have  occasion  to  use  this  means  of  trans- 
portation, a  reasonable  protection  against  neglect  or  fraud  or 
want  of  due  care  and  effort,  to  perform  punctually  and  correctly 
the  act  undertaken. 

The  company  is  not  the  ultimate  judge  of  the  reasonableness 
of  an  adopted  rule.  And  in  this  single  proposition  lies  the  gist 
of  the  whole  matter.  The  court  must  determine  in  every  case 
when  the  question  is  directly  raised,  whether  the  particular  re- 
striction or  qualification  is  a  reasonable  exercise  of  the  powers 
residing  in  the  company. 

Several  questions  as  to  reasonableness  have  arisen  under  dif- 
ferent conditions  made  by  telegraph  companies,  and  have  been 
considered  by  the  courts.  One  of  them  has  arisen  under  a  con- 
dition, which  is  found  in  the  general  blank  of  the  defendant  com- 
pany, by  which  it  is  stipulated  that  the  company  will  not  be 
responsible  for  more  than  the  sum  received  for  mistakes  or  de- 
lays, or  for  non-delivery  of  any  message,  unless  requested  to 
repeat  it  on  payment  therefor,  nor  for  more  than  fifty  times  the 
sum  received  for  any  repeated  message,  unless  paid  for  insuring 
it. 

It  seems  to  be  held,  that  however  it  may  be  in  cases  where  the 
error  causing  the  injury  was  occasioned  by  not  repeating,  or 
would  have  been  manifestly  prevented  or  avoided  by  repeating, 
yet  this  condition  could  not  cover  and  excuse  negligence  or  delay 
in  delivering  a  message  received,  or  any  other  nonfeasance  or 
misfeasance  not  imputable  to  or  excused  by  not  repeating.  West- 
em  Union  Telegraph  Company  v.  Graham,  1  Colorado,  230,  9 
Am.  Rep.  136 ;  Birney  v.  N.  York  &  Washington  Telegraph  Com- 
pany, 18  Md.  341,  81  Am.  D.  607. 

In  the  case  at  bar  no  such  question  arises.  No  such  condition 
is  found  in  the  "night  message  blanks"  of  the  company.  These 
messages  are  of  a  special  class,  and  are  made  subject  to  their  own 
rules,  as  printed  on  the  blanks.  The  charge  for  transmission  of 
these  night  messages  is  considerably  less  than  on  those  in  the 

639 


§  168  OF  TELEGEAPH  COMPANIES. 

general  business  of  the  company,  and,  perhaps  for  this  reason 
chiefly,  the  whole  provision  relating  to  repeating  is  omitted,  and 
the  sweeping  and  comprehensive  provision  by  which  in  effect 
all  liability  beyond  the  price  paid  is  avoided  is  substituted.  It 
is  clear  that  a  mere  change  of  rates  or  prices  cannot  avoid  legal 
liability.  The  duty  and  responsibility  of  the  company  cannot 
properly  be  measured  by  the  price  for  the  duty  undertaken. 

The  single  question  on  this  part  of  the  case  is  whether  the 
stipulation,  recited  in  full  at  the  commencement  of  this  opinion, 
is  a  reasonable  one,  or  one  which  the  company  could  lawfully 
impose  as  a  condition  of  the  contract. 

After  a  careful  reading,  it  seems  difficult  to  give  any  other 
construction  to  this  clause  than  a  general  and  unlimited  ex- 
emption from  all  and  any  liability  beyond  the  sum  paid.  It  is 
not  limited  to  those  cases  where  reasonable  care  and  attention 
might  not  prevent  mistakes  or  delays.  It  makes  no  reference  to 
the  subtle  and  mysterious  agency  employed  in  the  transmission 
of  messages,  or  to  the  peculiar  liability  to  error  in  the  work  of 
the  operator.  As  before  stated,  this  provision,  in  relation  to 
night  messages,  does  not  require  the  repeating  of  telegrams  sent, 
before  a  liability  should  attach.  It  simply  and  nakedly  exon- 
erates the  company  from  all  liability  (except  for  the  fee  paid) 
for  any  and  all  mistakes  in  the  transmission  of  the  message — ■ 
and  for  all  delays  in  transmitting — and  all  delays  in  delivery,  or 
even  non-delivery,  of  the  telegrams.  These  items  seem  to  include 
all  the  cases  of  neglect,  want  of  care  or  attention,  of  which  the 
company  can  be  guilty,  in  reference  to  the  performance  of  their 
duties  and  obligations  under  the  contract.  Even  gross  negligence 
and  the  want  of  the  lowest  degree  of  care  are  protected  from 
complaint,  although  affirmatively  proved  by  the  other  party. 
The  operator  may,  from  sleepiness  or  haste  to  close  for  the  night, 
prefer  to  pay  back  the  trifle  paid,  and  leave  the  message  unsent. 
Or  a  message  may  have  been  carelessly,  or  even  wantonly,  thrown 
into  the  waste  basket,  and  never  sent,  or  if  sent  it  may  have  been 
treated  in  the  same  manner  at  the  office  of  reception,  and  never 
delivered  to  a  carrier,  or  if  so  delivered,  it  may  have  been  thrown 
aside  or  destroyed  by  the  carrier  to  save  himself  labor  or  trouble. 
And  the  sender,  under  this  rule,  must  be  debarred  from  all 
remedy  beyond  a  repayment  of  the  few  cents  paid.  This  is  not 
the  establishment  of  a  rule  or  rules  for  the  management  of  the 
business  which  are  reasonable  and  proper  for  the  orderly  con- 
ducting of  its  business,  or  to  protect  the  company  against  unfair 
or  unreasonable  claims.  In  this  case  no  attempt  is  made  to  ex- 
cuse the  non-delivery;  but  a  liability  is  admitted. 

We  think  this  stipulation  is  not  reasonable,  for  it  does  not 

640 


TEUE  V.  INTERNATIONAL  TEL.  CO.  §  168 

come  within  any  established  principle,  applicable  to  employments 
of  this  nature,  whether  called  public  or  private.  It  goes  alto- 
gether too  far  in  attempting  to  cover  all  possible  delinquencies. 
"A  party  cannot  in  such  a  way  protect  himself  against  the  con- 
sequences of  his  own  fraud  or  gross  negligence,  or  the  fraud  or 
gross  negligence  of  his  servants  and  agents."  Ellis  v.  The 
American  Tel.  Co.,  13  Allen,  234.  In  the  case  of  Birney  v.  New 
York  &  Wash.  Tel.  Co.,  18  Md.  341,  81  Am.  D.  607,  the  court 
says  that  courts  and  legislatures  have  been  liberal  in  allowing 
companies  to  provide  against  such  risks  as  arise  out  of  atmos- 
pheric influences  and  kindred  causes.  At  this  point  they  have 
properly  stopped.  To  permit  them  to  contract  against  their 
own  negligence  would  be  to  arm  them  with  a  most  dangerous 
power;  one,  indeed,  that  would  leave  the  public  almost  reme- 
diless. It  must  be  borne  in  mind  that  the  public  have  but  little 
choice  in  the  selection  of  the  company  which  is  to  perform  the 
desired  service.  They  do  not  select  the  agents  or  employees,  nor 
can  they  remove  them.  They  are  bound  to  take  the  company  as 
they  find  it,  and  to  commit  to  its  agents  their  messages,  however 
valuable  they  may  be.  Such  being  the  case,  public  policy,  as 
well  as  commercial  necessity,  require  that  companies  engaged  in 
telegraphing  should  be  held  to  a  high  degree  of  responsibility. 

We  restate  our  propositions  and  conclusions  on  this  part  of 
the  case  in  order  to  prevent  any  misapprehension  of  the  extent 
and  limitations  of  the  rules  laid  down. 

1.  This  company,  and  all  others  of  a  like  nature,  offering  and 
undertaking  to  perform  acts  or  services  for  all  applicants,  at 
fixed  rates,  exercise,  at  least,  a  quasi  public  employment. 

2.  Such  company  may  adopt  and  enforce  reasonable  rules  and 
regulations  for  the  convenient  and  prompt  and  satisfactory  per- 
formance of  the  act  or  duty  undertaken. 

3.  This  right  in  the  company  is  not  absolute  and  unlimited; 
but  such  rules  are  subject  to  the  test  of  reasonableness  in  view 
of  the  rightful  claims  of  public  policy  and  private  rights,  and 
the  enforcement  of  the  obligation  of  good  faith  and  honest  ef- 
fort to  perform. 

4.  The  test  must  be  applied  by  the  court,  whenever  the  ques- 
tion arises  on  the  validity  of  any  such  regulation,  according  to 
the  rule  before  stated. 

5.  A  rule,  or  stipulation,  like  the  one  in  question  which  covers 
all  possible  delinquencies,  mistakes,  delays,  or  neglects  in  trans- 
mitting or  in  delivering  or  not  delivering  a  message,  from  what- 
ever cause  arising,  is  not,  for  the  reasons  before  stated,  a  reason- 
able regulation  within  the  legal  rule. 

6.  Such  a  rule  is  not  saved  from  these  objections,  by  the  con- 
41  641 


§  168  OF  TELEGKAPH  COMPANIES. 

dition  of  a  liability  to  repay,  if  required  by  the  sender,  of  the 
trifle  paid  to  them.  It  is  a  mere  evasion  of  the  legal  liability 
and  is  never  the  measure  of  damages  for  non-performance  of 
a  contract  of  this  kind. 

It  is  an  insufficient  and,  therefore,  an  unreasonable  stipulation, 
and  cannot  save  the  otherwise  clearly  objectionable  condition  of 
which  it  is  a  part. 

Another  question  is  presented  relating  to  the  rule  of  damages. 
It  is  agreed,  according  to  the  report  of  the  case,  that  if  the 
plaintiffs  are  entitled  to  recover  a  greater  sum  (than  forty-eight 
cents)  as  special  damages  upon  the  facts  aforesaid,  this  court 
is  to  determine  the  rule  upon  which  damages  shall  be  assessed. 

The  measure  of  damages  in  cases  of  this  kind  has  been  much 
discussed  in  the  text-books  and  decisions  in  this  country  and  in 
England.  It  would  seem  to  be  impracticable  to  attempt  to  lay 
down  any  single  and  simple  rule,  which  can  be  made  to  apply, 
without  qualification,  to  every  case.  There  are,  however,  certain 
general  principles  which  may  be  considered  as  applicable,  gen- 
erally to  these  cases,  and  to  be  now  quite  well  established. 

Before  considering  these  principles,  with  these  qualifications 
and  limitations,  it  may  be  well  to  examine  the  character  and 
exact  extent  of  the  message  in  the  case  before  us.  We  may  then 
be  better  able  to  apply  the  rules  established  or  admitted,  to  this 
particular  case.  For  it  is  the  rule  for  this  case,  that  we  are  called 
upon  to  define. 

We  assume  that  the  plaintiffs  can  prove  that  the  firm  in  Balti- 
more, to  whom  the  telegram  was  addressed,  had  offered  and 
agreed  to  sell  a  cargo  of  corn  at  ninety  cents  per  bushel  to  the 
plaintiffs;  that  the  telegram  contained  notice  of  acceptance  of 
the  proposition;  that  the  condition  nailed,  "if  you  can  secure 
freight  at  ten"  (cents),  could  have  been  complied  with,  if  the 
message  had  been  delivered  when  it  should  have  been;  that,  if 
it  had  been  thus  delivered,  the  bargain  would  have  been  closed, 
and  the  plaintiffs  would  at  that  moment  have  obtained  the  cargo 
at  ninety  cents  per  bushel,  with  freight  at  ten  cents. 

The  pecuniary  value,  then,  of  this  telegraphic  message  was 
in  this,  that  it  contained  a  part  of  a  contract,  and  that  the  final 
and  binding  and  effectual  act,  by  which  the  bargain  would  be- 
come operative  and  complete.  It  seems  clear  that  such  a  message 
has  a  distinctive  and  clear  pecuniary  value,  and  demands  of  the 
party  who,  for  a  reward,  undertakes  to  convey  it,  knowing  its 
contents,  the  same  care  and  diligence;  and  that  he  is  subject, 
at  least,  to  like  rules  and  liabilities,  as  if  he  (not  being  a  com- 
mon carrier),  had  undertaken  to  transport  an  article  of  mer- 
chandise. 

642 


TEUE  V,  INTEENATIONAL  TEL.  CO.  §  163 

On  its  face  it  gives  clear  intimation  that  it  is  of  a  business 
character,  relating  to  a  distinct  and  specific  contract,  and  that, 
according  to  the  well-known  custom  of  merchants,  it  must  have 
been  understood  by  the  operator  or  agent  as  an  acceptance  of  an 
offer  to  sell  a  cargo  at  the  price  named,  if  freight  at  ten  cents 
could  be  procured. 

In  this  respect  it  dift'ers  from  a  class  of  cases  to  be  found  in 
the  reports,  where  the  message  was  so  brief  or  enigmatical,  or  so 
obscure,  that  it  gave  the  operator  no  notice  that  it  was  of  any 
value  pecuniarily. 

It  differs  also  from  another  class  in  this,  that  it  is  not  a  gen- 
eral order  to  buy,  if  thought  best,  or  if  market  had  an  upward 
tendency,  or  if  there  was  a  probable  chance  of  profit,  or  any  like 
condition.  This  telegram  is  a  distinct  acceptance  of  an  offer,  at 
a  fixed  price,  of  a  cargo.  Its  binding  efficacy  was  not  dependent 
upon  any  contingency,  or  rise  or  fall  in  the  market.  If  it  had 
been  duly  delivered,  the  plaintiffs  would  have  been,  at  that  mo- 
ment, the  purchasers  and  owners  at  Baltimore  of  a  cargo  of 
corn  at  ninety  cents,  with  freight  at  ten  cents.  It  was  not  de- 
livered, and  the  plaintiffs  were  not  at  that  time  and  place  such 
owners,  as  between  the  plaintiffs  and  defendants,  the  plaintiffs 
were  entitled  to  be,  at  such  price.  They  would  have  been  such, 
but  for  the  neglect  of  the  defendants.  What  is  the  measure 
of  damages?  Clearly  not  the  price  paid  for  the  transmission 
only.  Paying  that  back  would  be  rather  in  the  nature  of  a  re- 
cission  of  the  contract,  than  damages  for  its  non-performance. 
And  we  have  before  determined,  that  the  special  condition  was 
not  binding  so  as  to  exonerate  from  all  other  damages  occasioned 
by  neglect  or  want  of  common  care  and  attention  in  the  per- 
formance of  the  contract  and  duty  assumed. 

A  more  difficult  question  arises  in  fixing  an  exact  rule  in  de- 
termining the  amount  of  damages  in  this  case. 

The  general  rule  is  familiar,  and  is  among  the  rudimental 
axioms  of  the  law. 

In  this  State,  the  general  doctrine  was  laid  down  at  an  early 
day  in  Miller  v.  Mariner's  Church,  7  Greenl.  51,  20  Am.  D.  341, 
in  an  opinion  of  the  court  drawn  by  Mr.  Justice  Weston  in  his 
usually  clear,  discriminating,  and  accurate  style,  and  precision 
in  use  of  language.  "In  general,  the  delinquent  party  is  holden 
to  make  good  the  loss  occasioned  by  his  delinquency.  But  his 
liability  is  limited  to  direct  damages,  which,  according  to  the 
nature  of  the  subject,  may  be  contemplated  or  presumed  to  re- 
sult from  his  failure.  Remote  or  speculative  damages,  although 
susceptible  of  proof,  and  deducible  from  the  non-performance, 
are  not  allowed.     And  if  the  party  injured  has  it  in  his  power 

643 


§  1G8  OF  TELEGKAPH  COMPANIES. 

to  take  measures  by  which  his  loss  is  less  aggravated, 
this  will  be  expected  of  him.  If  the  party  entitled  to  the  benefit 
of  a  contract  can  protect  himself  from  loss,  arising  from  a 
breach,  at  a  trifling  expense,  or  with  reasonable  exertion,  he  is 
bound  to  do  so. ' ' 

The  above  extract,  as  it  seems  to  us,  contains  the  substance 
of  the  whole  law  applicable  to  this  subject,  and  the  germ  from 
which  long  chapters  and  long  opinions  have  been  expanded.  It 
is  constantly  cited  as  an  early  and  authoritative  statement  of 
the  legal  rule  on  this  subject. 

The  principles  and  rules  laid  down  in  this  case  have  been  re- 
affirmed in  our  court  in  many  cases.  In  Berry  v.  Dwinel,  44 
Maine,  255,  it  is  held  that  ''remote  and  consequential  damages, 
possible  gains,  and  contingent  profits  are  not  allowed."  The 
rule  was  applied  in  this  case  to  possible  or  actual  loss  to  plaintiff 
in  the  future,  which  the  defendant  set  up  as  a  defense  to  re- 
covery of  damages,  for  non-delivery  of  logs  at  a  stipulated  price 
and  time. 

Perkins  v.  P.  S.  &  P.  R.  R.,  47  Maine  592,  74  Am.  D.  162 ; 
Ripley  v.  Mosely,  57  Id.  76,  and  cases  there  cited.  In  that  case  it 
was  held,  that  when  the  loss  is  not  speculative  nor  dependent 
upon  contingencies,  but  is  one  of  the  natural  and  direct  results 
of  the  act,  it  may  be  recovered.  But  loss  of  probable  profits  is 
too  uncertain  and  problematical  to  be  a  basis  for  estimation  of 
damages. 

In  an  English  case,  Hamlin  v.  G.  N.  Railway,  1  H.  &  N.  408, 
it  is  laid  down  as  a  general  principle,  that  no  damages  can  be 
given  on  contracts,  which  cannot  be  stated  specifically. 

Redfield,  in  his  chapter  on  Telegraph  Companies,  §  1896,  thus 
states  it  as  applicable  to  such  companies :  ' '  The  company  must 
make  good  the  loss  resulting  from  any  default  on  their  part." 
But  what  loss?  Can  a  party  recover  for  every  loss,  or  injury 
which  he  can  show,  by  facts  subsequently  occurring,  did  in 
truth  result  to  him  from  the  failure  of  duty  on  the  part  of  the 
other  party  ? 

The  clear  preponderance  and  weight  of  the  decisions  are,  that 
the  qualification,  which  was  thought  formerly  to  be  sufficient 
to  meet  all  cases,  is  not  satisfactory.  That  qualification  was, 
that  the  injury  must  be  the  ordinary,  natural,  or  even  neces- 
sary result  of  the  breach.  But  loss  of  profits  may  be  clearly 
shown  to  have  been  occasioned  by  the  failure,  and  from  no  other 
cause.  So  injury  and  loss  may  be  directly  traced  to  the  same 
cause,  when  the  party  is  prevented  from  availing  himself,  by 
this  breach  of  one  contract,  of  some  other  collateral,  and  inde- 
pendent contract  entered  into  with  other  parties.     Or  where  a 

644 


TRUE  V.  INTERNATIONAL  TEL.  CO.  §  168 

party  has  been  prevented  from  doing  some  act,  or  making  some 
investment  in  his  own  business,  not  necessarily  connected  with 
the  agreement  in  question. 

These  damages  are  disallowed,  not  because  they  cannot  be 
traced  directly  as  the  immediate  and  undoubted  effect  of  the 
breach,  but  because  they  are  in  their  nature  uncertain  and  con- 
tingent, and,  perhaps  more  decidedly,  because  they  are  not  such 
as  would  naturally  flow  from  such  a  breach,  and  could  not 
fairly  be  considered  as  having  been  within  the  contemplation  of 
the  parties  at  the  time  of  entering  into  the  contract.  This  rule 
necessarily  excludes  all  remote,  speculative,  and  uncertain  re- 
sults, as  well  as  possible  profits,  advantages,  and  other  like  con- 
sequences which  might  have  arisen,  or  which  it  can  be  shown 
would  have  arisen  from  the  performance  of  the  contract.  This 
seems  to  be  the  doctrine  in  other  States  and  in  England.  Squire 
V.  Western  Union  Telegraph  Co.,  98  Mass.  232,  93  Am.  D.  162 ; 
Griffin  v.  Colver,  16  N.  Y.  490,  69  Am.  D.  718 ;  Leonard  v.  New 
York  Telegraph  Co.,  41  Id.  544,  1  Am.  Rep.  446;  Freeman  v. 
Clute,  3  Barb.  426;  Blanchard  v.  Ely,  21  Wend.  342,  34  Am. 
D.  250;  The  Sch.  Lively,  1  Gall.  315;  Graham  v.  Western  Union 
Telegraph  Co.  (Colorado),  before  cited;  Hadley  v.  Baxendale, 
26  Eng.  Law  &  Eq.  398,  a  leading  case  on  resulting  damages. 
Other  English  and  American  cases  might  be  cited,  bearing  more  . 
or  less  directly  on  the  subject.  They  can  be  found  collected  in 
Sedgwick  on  Damages,  and  other  text-books. 

But  the  negation  of  certain  elements  still  leaves  the  true  rule 
undetermined.  This,  we  think  is  to  be  found  in  the  application 
of  the  principle,  which,  excluding  all  uncertain,  pj-oblematical 
and  contingent  profits,  holds  the  party  liable  for  the  immediate 
and  necessary  result  of  the  breach,  and  which  may  fairly  be  pre- 
sumed to  have  been  in  contemplation  of  the  parties  at  the  time, 
and  are  capable  of  being  definitely  ascertained  by  reference  to 
established  market  rates. 

Now,  in  the  ease  before  us,  the  plaintiffs  should  have  had,  at 
the  time  when  the  dispatch  should  have  been  delivered,  a  cargo  at 
ninety  cents  and  freight  at  ten  cents.  The  natural  consequence 
of  this  neglect,  one  which  might  well  be  anticipated  or  be  in 
contemplation  of  the  parties,  was  that  the  bargain  would  be 
lost,  and  that  the  cargo  might  be  sold  to  other  parties,  or  the 
seller  would  decline  to  accept  a  repetition  of  the  offer,  after- 
ward, at  same  price.  Plaintiffs  wanted  the  cargo  and  had  a  right 
to  have  it  at  the  price  named.    What  was  the  damage  ? 

Here  comes  in  the  second  proposition  in  Miller  v.  Mariner's 
Church,  viz.,  that  the  party  should  not  at  once  abandon  all  at- 
tempts to  procure  the  corn,  and  rest  upon  a  claim  for  indefinite 

645 


§  168  OF  TELEGEAPH  COMPANIES. 

and  possible  profits  which  he  might  have  made  by  a  rise  in  the 
market,  if  he  had  obtained  the  article  at  the  time,  but  must  use 
reasonable  diligence,  after  notice  of  the  failure,  to  procure  the 
same  quantity,  and  the  lowest  freights,  at  the  then  market  rates. 

The  sum,  therefore,  which  would  be  a  compensation  for  the 
direct  loss  and  injury  sustained  by  the  non-delivery  of  this  mes- 
sage, is  the  difference  (if  at  a  higher  rate)  between  the  ninety 
cents  named  and  the  sum  which  the  plaintiffs  were  or  would 
have  been  compelled  to  pay  at  the  same  place,  in  order,  by  due 
and  reasonable  diligence,  after  notice  of  the  failure  of  the  tele- 
gram, to  purchase  the  like  quantity  and  quality  of  the  same 
species  of  merchandise,  and  the  same  rule  applies  to  any  increase 
of  freight  from  the  sum  named,  if  it  be  shown  that  the  corn 
could  have  been  shipped  by  the  sellers,  at  that  rate,  if  the  tele- 
gram had  been  duly  received. 

The  case  of  Squire  v.  Western  Union  Telegraph  Co.,  98  Mass. 
232,  93  Am.  D.  162,  adopts  this  view,  in  a  case  very  nearly  resem- 
bling this  in  its  facts. 

Rittenhouse  v.  Independent  Line  of  Telegraph,  1  Daly  (N.  Y.), 
474,  where  the  operator  made  a  mistake  in  the  article  ordered, 
it  was  held  that  the  company  must  make  good  the  difference 
between  the  price  of  the  article  actually  ordered,  at  the  time 
when  ordered,  and  the  price  of  the  same  article,  if  purchased  as 
soon  as  the  mistake  was  discovered. 

United  States  Telegraph  Co.  v.  Wenger,  55  Penn.  St.  262,  93 
Am.  D.  751.  An  order  to  buy  stocks;  no  reason  given  why  not 
delivered;  a  case  of  negligence;  stocks  ordered  not  bought  on 
the  day;  they  would  have  been,  if  telegram  had  been  received, 
but  were  purchased  three  days  afterward  at  an  advance.  That 
difference,  the  court  say,  is  undoubtedly  the  damages  the  plain- 
tiff has  sustained  and  is  entitled  to  recover.  ' '  The  dispatch  was 
such  as  to  disclose  the  nature  of  the  business  to  which  it  re- 
lated, and  that  loss  might  be  very  likely  to  occur  if  there  was  a 
want  of  promptitude  in  transmitting  it. ' '  Leonard  v.  New  York 
Telegraph  Co.,  41  N.  Y.  544,  before  cited,  a  case  of  mistake; 
Griffin  v.  Colver,  16  N.  Y.  490,  69  Am.  D.  718 ;  DeRutte  v.  N. 
Y.  Al.  &  B.  R.  Tel.  Co.,  1  Daly,  547 ;  Parks  v.  Alta  California 
Telegraph  Co.,  13  Cal.  422,  73  Am.  D.  589. 

In  our  own  State,  in  the  case  of  Berry  v.  Dwinel,  before  cited, 
the  rule,  in  an  analogous  case,  is  thus  stated:  "When  a  party 
contracts  to  deliver  goods  at  a  particular  time  and  place,  and 
no  payment  has  been  made,  the  true  measure  of  damages  is  the 
difference  between  the  contract  price  and  that  of  like  goods  at 
time  and  place  where  they  should  have  lieen  delivered." 

And  so  it  has  been  held  that  a  common  carrier,  who  unrea- 

646 


AYEE  V.  W.  U.  TELEGEAPH  CO.  §§  168,  169 

sonably  delays  to  transport  or  deliver  goods  intrusted  to  liim, 
will  be  held  to  pay  the  difference  between  the  market  value  at 
time  and  place  when  and  where  they  ought  to  have  been  de- 
livered, and  the  market  value  at  that  place  on  day  of  actual  de- 
livery. And  this  although  no  special  contract  as  to  time,  and 
no  special  intended  use,  and  no  deterioration  in  the  quality  of  the 
article.  Cutting  v.  G.  T.  R.  R.,  13  Allen,  381.  The  same  de- 
cision has  been  made  by  this  court  in  Ball  v.  Railroad — not  re- 
ported. See  Weston  v.  G.  T.  R.  Co.,  54  Me.  376,  92  Am.  D.  5. 
Appleton,  C.  J.,  delivered  a  dissenting  opinion. 


169.     AYER  V.  WESTERN  UNION  TELEGRAPH  CO., 
79  Me.  193;  10  Atl.  R.  495;  1  Am.  St.  B.  353.    1887. 

By  Court,  Emery,  J.  On  report.  The  defendant  telegraph 
company  was  engaged  in  the  business  of  transmitting  messages 
by  telegraph  between  Bangor  and  Philadelphia,  and  other  points. 
The  plaintiff,  a  lumber  dealer  in  Bangor,  delivered  to  the  de- 
fendant company  in  Bangor,  to  be  transmitted  to  his  corre- 
spondent in  Philadelphia,  the  following  message:  "Will  sell 
800M  laths,  delivered  at  your  wharf,  two  ten  net  cash.  July 
shipment.  Answer  quick."  The  regular  tariff  rate  was  pre- 
paid by  the  plaintiff  for  such  transmission.  The  message  de- 
livered by  the  defendant  company  to  the  Philadelphia  corre- 
spondent was  as  follows:  "Will  sell  800M  laths  delivered  at 
your  wharf  two  net  cash.  July  shipment.  Answer  quick."  It 
will  be  seen  that  the  important  word  "ten,"  in  the  statement  of 
price,  was  omitted. 

The  Philadelphia  party  immediately  returned  by  telegraph 
the  following  answer:  "Accept  your  telegraphic  offer  on  laths. 
Cannot  increase  price  spruce."  Letters  afterward  passed  be- 
tween the  parties,  which  disclosed  the  error  in  the  transmission 
of  the  plaintiff's  message.  About  two  weeks  after  the  discovery 
of  the  error,  the  plaintiff  shipped  the  laths,  as  per  the  message 
received  by  his  correspondent,  to-wit,  at  two  dollars  per  M.  He 
testified  that  his  correspondent  insisted  he  was  entitled  to  the 
laths  at.  that  price,  and  they  were  shipped  accordingly. 

The  defendant  telegraph  company  offered  no  evidence  what- 
ever, and  did  not  undertake  to  account  for  or  explain  the  mis- 
take in  the  transmission  of  the  message.  The  presumption 
therefore  is,  that  the  mistake  resulted  from  the  fault  of  the 
telegraph  company.  We  cannot  consider  the  possibility  that 
it  may  have  resulted  from  causes  beyond  the  control  of  the 

647 


§  169  OF  TELEGRAPH  COMPANIES. 

company.  In  the  absence  or  evidence  on  that  point,  we  must 
assume  that  for  such  an  error  the  company  was  in  fault:  Bart- 
lett  V.  Tel.  Co.,  62  Me.  221,  16  Am.  R.  437. 

The  fault  and  consequent  liability  of  the  defendant  company 
being  thus  established,  the  only  remaining  question  is  the  ex- 
tent of  that  liability  in  this  case.  The  plaintiff  claims  it  ex- 
tends to  the  difference  between  the  market  price  of  the  laths 
and  the  price  at  which  they  were  shipped.  The  defendant 
claims  its  liability  is  limited  to  the  amount  paid  for  the  trans- 
mission of  the  message.  It  claims  this  limitation  on  two 
grounds : — 

1.  The  company  relies  upon  a  stipulation  made  by  it  with  the 
plaintiff,  as  follows:  "All  messages  taken  by  this  company  are 
subject  to  the  following  terms:  to  guard  against  mistakes  or 
delays,  the  sender  of  a  message  should  order  it  repeated;  that 
is,  telegraphed  back  to  the  originating  office  for  comparison. 
For  this,  one-half  the  regular  rate  is  charged  in  addition.  It 
is  agreed  between  the  sender  of  the  following  message  and 
this  company  that  the  said  company  shall  not  be  liable  for  mis- 
takes or  delays  in  the  transmission,  or  delivery,  or  for  non- 
delivery of  any  unrepeated  message,  whether  happening  by 
negligence  of  its  servants  or  otherwise,  beyond  the  amount 
received  for  sending  the  same."  This  is  the  usual  stipulation 
printed  on  telegraph  blanks,  and  was  known  to  the  plaintiff, 
and  was  printed  at  the  top  of  the  paper  upon  which  he  wrote 
and  signed  his  message.  He  did  not  ask  to  have  the  message  re- 
peated. 

Is  such  a  stipulation  in  the  contract  of  transmission  valid 
as  a  matter  of  contract  assented  to  by  the  parties,  or  is  it  void 
as  against  public  policy?    We  think  it  is  void. 

Telegraph  companies  are  quasi  public  servants.  They  re- 
ceive from  the  public  valuable  franchises.  They  owe  the  pub- 
lic care  and  diligence.  Their  business  intimately  concerns  the 
public.  Many  and  various  interests  are  practically  dependent 
upon  it.  Nearly  all  interests  may  be  affected  by  it.  Their 
negligence  in  it  may  often  work  irreparable  mischief  to  indi- 
viduals and  communities.  It  is  essential  for  the  public  good 
that  their  duty  of  using  care  and  diligence  be  rigidly  enforced. 
They  should  no  more  be  allowed  to  effectually  stipulate  for  ex- 
emption from  this  duty  than  should  a  carrier  of  passengers, 
or  any  other  party  engaged  in  a  public  business. 

This  rule  does  not  make  telegraph  companies  insurers.  It 
does  not  make  them  answer  for  errors  not  resulting  from  their 
negligence.  It  only  requires  the  performance  of  their  plain 
duty.     It  is  no  hardship  upon  them.     They  engage  in  the  busi- 

648 


AYEE  V.  W.  U.  TELEGEAPH  CO.  §  169 

ness  voluntarily.  They  have  the  entire  control  of  their  servants 
and  instruments.  They  invite  the  public  to  intrust  messages 
to  them  for  transmission.  They  may  insist  on  their  compen- 
sation in  advance.  Why,  then,  should  they  refuse  to  perform 
the  common  duty  of  care  and  diligence  ?  Why  should  they  make 
conditions  for  such  performance?  Having  taken  the  message 
and  the  pay,  why  should  they  not  do  all  things  (including 
the  repeating)  necessary  for  correct  transmission?  Why  should 
they  insist  on  special  compensation  for  using  any  particular 
mode  or  instrumentality  as  a  guard  against  their  own  negli- 
gence? It  seems  clear  to  us  that,  having  undertaken  the  busi- 
ness, they  ought  without  qualification  to  do  it  carefully,  or  be 
responsible  for  their  want  of  care. 

It  is  true,  there  are  nuinerous  cases  in  other  states  holding 
otherwise,  but  we  think  the  doctrine  above  stated  is  the  true 
one,  and  in  harmony  with  the  previous  decisions  of  this  court: 
True  V.  Tel.  Co.,  60  Me.  9,  11  Am.  R.  156 ;  Bartlett  v.  Tel.  Co., 
62  Me.  221,  16  Am.  R.  437. 

2.  The  defendant  company  also  claims  that  the  plaintiff  was 
not,  in  fact,  damaged  to  a  greater  extent  than  the  price  paid 
by  him  for  the  transmission.  It  contends  that  the  plaintiff  was 
not  bound  by  the  erroneous  message  delivered  by  the  company 
to  the  Philadelphia  party,  and  hence  need  not  have  shipped 
the  laths  at  the  lesser  price.  This  raises  the  question  whether 
the  message  written  by  the  sender  and  intrusted  to  the  tele- 
graph company  for  transmission,  or  the  message  written  out 
and  delivered  by  the  company  to  the  receiver  at  the  other  end 
of  the  line,  as  and  for  the  message  intended  to  be  sent,  is  the 
better  evidence  of  the  rights  of  the  receiver  against  the  sender. 

The  question  is  important,  and  not  easy  of  solution.  It 
would  be  hard  that  the  negligence  of  the  telegraph  company, 
or  an  error  in  transmission  resulting  from  uncontrollable  causes, 
should  impose  upon  the  innocent  sender  of  a  message  a 
liability  he  never  authorized  nor  contemplated.  It  would  be 
equally  hard  that  the  innocent  receiver,  acting  in  good  faith 
upon  the  message  as  received  by  him,  should,  through  such  error, 
lose  all  claim  upon  the  sender.  If  one,  owning  merchandise, 
write  a  message  offering  to  sell  at  a  certain  price,  it  would 
seem  unjust  that  the  telegraph  company  could  bind  him  to 
sell  at  a  less  price,  by  making  that  error  in  the  transmission. 
On  the  other  hand,  the  receiver  of  the  offer  may,  in  good  faith, 
upon  the  strength  of  the  telegram  as  received  by  him,  have 
sold  all  the  merchandise  to  arrive,  perhaps  at  the  same  rate.  It 
would  seem  unjust  that  he  should  have  no  claim  for  the  mer- 
chandise.    If  an  agent  receive  instructions  by  telegraph  from 

649 


§  169  OF  TELEGEAPH  COMPANIES. 

his  principal,  and  in  good  faith  act  upon  them  as  expressed  in 
the  message  delivered  him  by  the  company,  it  would  seem  he 
ought  to  be  held  justified,  though  there  were  an  error  in  the 
transmission. 

It  is  evident  that  in  case  of  an  error  in  the  transmission  of 
a  telegram,  either  the  sender  or  receiver  must  often  suffer  loss. 
As  between  the  two,  upon  whom  should  the  loss  finally  fall? 
We  think  the  safer  and  more  equitable  rule,  and  the  rule  the 
public  can  most  easily  adapt  itself  to,  is,  that  as  between 
sender  and  receiver,  the  party  who  selects  the  telegraph  as  the 
means  of  communication  shall  bear  the  loss  caused  by  the 
errors  of  the  telegraph.  The  first  proposer  can  select  one  of 
many  modes  of  communication,  both  for  the  proposal  and  the 
answer.  The  receiver  has  no  such  choice,  except  as  to  his 
answer.  If  he  cannot  safely  act  upon  the  message  he  receives 
through  the  agency  selected  by  the  proposer,  business  must  be 
seriously  hampered  and  delayed.  The  use  of  the  telegraph 
has  become  so  general,  and  so  many  transactions  are  based  on 
the  words  of  the  telegram  received,  any  other  rule  would  now 
be  impracticable. 

Of  course  the  rule  above  stated  presupposes  the  innocence 
of  the  receiver,  and  that  there  is  nothing  to  cause  him  to  sus- 
pect an  error.  If  there  be  anything  in  the  message,  or  in  the 
attendant  circumstances,  or  in  the  prior  dealings  of  the  parties, 
or  in  anything  else  indicating  a  probable  error  in  the  trans- 
mission, good  faith  on  the  part  of  the  receiver  may  require 
him  to  investigate  before  acting.  Neither  does  the  rule  include 
forged  messages,  for  in  such  case  the  supposed  sender  did  not 
make  any  use  of  the  telegraph. 

The  authorities  are  few  and  somewhat  conflicting,  but  there 
are  several  in  harmony  with  our  conclusion  upon  this  point. 
In  Durkee  v.  Vermont  C.  R.  R.  Co.,  29  Vt.  137,  it  was  held  that 
where  the  sender  himself  elected  to  communicate  by  telegraph, 
the  message  received  by  the  other  party  is  the  original  evidence 
of  any  contract.  In  Saveland  v.  Green,  40  Wis.  431,  the  mes- 
sage received  from  the  telegraph  company  was  admitted  as 
the  original  and  best  evidence  of  a  contract  binding  on  the 
sender.  In  Morgan  v.  People,  59  111.  58,  it  was  said  that  the 
telegram  received  was  the  original,  and  it  was  held  that  the 
sheriff  receiving  such  a  telegram  from  the  judgment  creditor 
was  bound  to  follow  it  as  it  read.  There  are  dicta  to  the  same 
effect  in  Wilson  v.  M.  &  N.  R'y  Co.,  31  Minn.  481,  18  N.  W.  R. 
291,  and  Howley  v.  Whipple,  48  N.  H.  488. 

Telegraph  Company  v.  Shotter,  71  Ga.  760,  is  almost  a  paral- 
lel case.    The  sender  wrote  his  message:    "Can  deliver  hundred 

650 


WEBBE  V,  W.  U.  TELEGRAPH  CO.  §§  169,  170 

turpentine  at  sixty-four. ' '  As  received  from  the  telegraph  com- 
pany it  read:  ''Can  deliver  hundred  turpentine  at  sixty,"  the 
word  ''four"  being  omitted.  The  receiver  immediately  tele- 
graphed an  acceptance.  The  sender  shipped  the  turpentine,  and 
drew  for  the  price  at  sixty-four.  The  receiver  refused  to  pay 
more  than  sixty.  The  sender  accepted  the  sixty,  and  sued  the 
telegraph  company  for  the  difference  between  sixty  and  the 
market.  It  was  urged,  as  here,  that  the  sender  was  not  bound 
to  accept  the  sixty,  as  that  was  not  his  offer.  The  court  held, 
however,  that  there  was  a  completed  contract  at  sixty,  that  the 
sender  must  fulfill  it,  and  could  recover  his  consequent  loss  of 
the  telegraph  company. 

It  follows  that  the  plaintiff  in  this  case  is  entitled  to  recover 
fne  difference  between  the  two  dollars  and  the  market,  as  to 
laths.  The  evidence  shows  that  the  difference  was  ten  cents 
per  M. 

Judgment  for  plaintiff  for  eighty  dollars,  with  interest  from 
the  date  of  the  writ. 


170.     WEBBE  V.  WESTERN  UNION  TELEGRAPH  CO., 

169  III.  610;  21  N.  E.  E.  4;  61  Am.  St.  B.  207.    1897. 

Magruder,  J.  Upon  the  blank  form,  containing  the  tele- 
graphic message  delivered  by  Haas  to  the  appellee's  operator  at 
Montgomery,  Alabama,  there  were  printed  in  small  type  certain 
conditions,  among  which  was  the  following :  ' '  The  company  will 
not  hold  itself  liable  ...  in  any  case  where  the  claim  is 
not  presented  in  writing  within  sixty  days  after  the  message  is 
filed  with  the  company  for  transmission. ' ' 

Upon  the  back  of  the  blank  form,  upon  which  the  dispatch 
as  delivered  to  appellant  in  Chicago  was  written,  certain  stipu- 
lations and  conditions  were  printed,  the  last  of  which  was  as  fol- 
lows: "The  company  will  not  be  liable  for  damages  or  statutory 
penalties  in  any  case  where  the  claim  is  not  presented  in  writing 
within  sixty  days  after  the  message  is  filed  with  the  company  for 
transmission. ' ' 

It  is  contended  by  appellee  that  the  claim  here  sued  upon  was 
not  presented  in  writing  within  the  sixty  days  named  in  the 
printed  conditions.  It  is  not  altogether  clear,  under  the  evidence 
in  this  case,  that  the  claim  was  not  presented  in  writing  within 
sixty  days  as  required  by  the  condition.  On  February  7,  1893, 
one  of  the  attorneys  of  the  appellant  wrote  a  letter  to  an  officer 
of  the  appellee  company.  Although  this  letter  stated  that  the 
claim  for  damages  was  made  against  appellee  on  behalf  of  I. 

651 


§  170  OF  TELEGRAPH  COMPANIES. 

H.  &  J.  C.  Haas,  yet  the  letter  explained  fully  the  nature  of 
the  alteration  which  was  made  in  the  dispatch,  and  the  nature  of 
the  claim  based  upon  the  loss  incurred  by  reason  of  that  altera- 
tion. But  whether  the  claim  was  presented  in  writing  within 
the  sixty  days  or  not,  it  seems  to  be  conceded  that  the  action  of 
the  court  in  instructing  the  jury  to  find  for  the  defendant  was 
based  upon  the  conclusion  that  the  claim  was  not  presented  in 
writing  within  the  time  named. 

The  question  in  the  case  is,  whether  the  court  erred  in  taking 
the  case  away  from  the  jury.  The  further  question  involved  is, 
whether  the  failure  to  present  the  claim  in  writing  within  the 
sixty  days,  if  there  was  such  failure,  constitutes  a  defense  against 
the  present  action.  It  is  not  denied  that  the  company  was  guilty 
of  negligence  in  delivering  the  dispatch  as  altered,  instead  of  de- 
livering it  as  originally  sent.  At  any  rate,  no  contest  is  made 
upon  the  question  as  to  whether  there  was  such  negligence  or 
not.  Counsel  for  appellee  confine  themselves  in  their  brief  to 
the  proposition  that,  for  want  of  a  claim  in  writing  within  sixty 
days  after  the  dispatch  in  question  was  sent,  appellant's  right  of 
recovery  is  barred. 

It  is  to  be  noted  that  this  suit  is  not  brought  by  Haas,  the 
sender  of  the  dispatch,  but  by  Webbe,  the  receiver  of  the  dis- 
patch as  changed.  The  dispatch,  as  sent,  is  signed  by  the  sender, 
but  the  dispatch,  as  received,  is  not  signed  by  the  receiver.  The 
question  then  arises,  whether  any  difference  exists  between  the 
right  of  recovery  by  the  sender  of  the  dispatch  and  the  right  of 
recovery  by  the  receiver  of  the  dispatch,  so  far  as  these  printed 
conditions  upon  the  blank  forms  are  concerned.  We  have  held 
that  the  relation  of  contract  exists  between  the  sender  of  the 
dispatch  and  the  telegraph  company,  but  that  no  relation  of  con- 
tract exists  between  the  receiver  of  the  dispatch  and  the  tele- 
graph company;  and  that  the  proper  remedy  of  the  receiver  of 
the  dispatch  for  damages  on  account  of  its  alteration  is  an  action 
in  tort :  Western  Union  Tel.  Co.  v.  Du  Bois,  128  111.  248,  21  N. 
E.  R.  4,  15  Am.  St.  E.  109.  Ordinarily,  where  a  shipper  of 
goods,  or  the  sender  of  a  telegraphic  dispatch,  is  held  to  be 
bound  by  stipulations  or  conditions  printed  upon  the  blank 
form  of  a  receipt,  pr  bill  of  lading,  or  dispatch,  it  is  upon  the 
ground  that  the  person  so  bound  signs  the  document  containing/ 
the  conditions,  and  makes  a  contract  with  the  company,  which  is 
to  carry  his  goods  or  transmit  his  message.  It  would  seem  to 
be  clear,  however,  that  such  conditions  and  stipulations  would 
not  have  the  same  binding  effect  where,  as  here,  no  contract  rela- 
tion exists. 

In  a  ease  where  a  suit  in  assumpsit  for  damages  was  brought 

652 


WEBBE  V.  W.  U.  TELEGRAPH  CO.  §  170 

by  the  sender  of  a  dispatch  against  the  telegraph  company,  we 
held  that  the  telegraph  company  is  a  servant  of  the  public,  and 
bound  to  act  whenever  called  upon,  its  charges  being  paid  or 
tendered;  that  such  companies  are,  in  this  respect,  like  common 
carriers,  and,  though  not  regarded,  like  common  carriers,  as  in- 
surers of  the  safe  delivery  of  every  message  intrusted  to  them, 
yet  their  duty  is  to  transmit  correctly  the  message  as  delivered ; 
that  they  are  bound  to  the  use  of  due  and  reasonable  care,  and 
liable  for  the  consequences  of  carelessness  or  negligence,  in  the 
conduct  of  their  business;  that  where  a  party  desiring  to  send 
a  telegraphic  dispatch  is  required  by  the  company  to  write  his 
message  upon  a  paper,  containing  a  condition  exonerating  the 
company  from  liability  for  an  incorrect  transmission  of  the  mes- 
sage unless  it  shall  be  repeated  and  at  an  additional  cost  therefor 
to  the  sender,  such  a  restriction,  even  if  regarded  as  a  contract, 
is  unjust,  without  consideration,  and  void ;  that  it  is  against  pub- 
lic policy  to  permit  telegraph  companies  to  secure  exemption 
from  the  consequences  of  their  own  gross  negligence  by  contract ; 
that,  notwithstanding  any  special  condition  which  may  be  con- 
tained in  a  contract  between  a  company  and  the  sender  of  a 
message  respecting  the  liability  of  the  former  in  case  of  an  in- 
accurate transmission  of  the  message,  the  company  will  still  be 
liable  for  mistakes  happening  by  its  own  fault;  that  it  will  de- 
pend on  circumstances  whether  a  paper,  furnished  by  the  com- 
pany on  which  the  message  is  written  and  signed  by  the  sender 
is  a  contract  or  not ;  that  it  is  a  question  for  the  jury  to  deter- 
mine, as  a  question  of  fact,  upon  evidence  aliunde,  and  from  all 
the  circumstances  attending  the  signing  of  the  paper,  whether 
or  not  the  sender  of  the  dispatch  has  knowledge  of  its  terms  and 
assents  to  its  restrictions :  Tyler  v.  Western  Union  Tel.  Co.,  60 
111.  421,  14  Am.  Rep.  38.  The  Tyler  case  distinctly  held  that 
assent  by  the  sender  of  the  dispatch  to  the  printed  terms  and 
conditions  upon  the  blank  form  must  be  shown,  in  order  to  make 
such  terms  and  conditions  binding  as  a  contract  upon  the  sender. 
The  doctrine  of  the  Tyler  case  has  been  subsequently  indorsed 
and  approved  by  this  court :  Western  Union  Tel.  Co.  v.  Tyler, 
74  111.  168,  24  Am.  Rep.  279 ;  Western  Union  Tel.  Co.  v.  Du  Bois, 
128  111.  248,  21  N.  E.  R.  4,  15  Am.  St.  R.  109. 

If  assent  to  such  terms  and  conditions  is  necessary  to  bind 
the  sender  of  the  dispatch,  surely  assent  to  such  terms  and  con- 
ditions, as  printed  upon  a  dispatch  delivered,  will  be  necessary  to 
bind  the  receiver  thereof.  The  receiver  of  the  dispatch  will  cer- 
tainly not  be  bound  by  a  provision  thereon,  requiring  a  claim  to 
be  presented  within  sixty  days,  in  the  absence  of  proof  that  he 
assented  to  such  a  provision:    Western  Union  Tel.  Co.  v.  Fair- 

653 


§  170  OF  TELEGRAPH  COMPANIES. 

banks,  15  111.  App.  600;  Western  Union  Tel.  Co.  v.  De  Golyer, 
27  111.  App.  489 ;  Western  Union  Tel.  Co.  v.  Lyean,  60  111.  App. 
124. 

It  is  said,  however,  that  the  requirement  that  the  claim  should 
be  presented  within  sixty  days  is  a  reasonable  requirement,  and 
that  a  party  suing  for  damages  will  be  bound  to  show  that  he 
has  complied  with  such  requirement,  if  he  had  notice  or  knowl- 
edge of  the  same,  or  if  there  were  any  circumstances  of  such  a 
character  as  to  affect  him  with  such  notice  or  knowledge.  Upon 
an  examination  of  the  authorities,  it  will  be  found  that,  in  most 
cases  where  the  provision  in  regard  to  the  limit  of  sixty  days 
has  been  held  to  be  reasonable,  and  notice  or  knowledge  of  the 
same  has  been  held  to  be  binding  upon  the  plaintiff  in  the  suit, 
the  controversy  has  been  between  the  sender  of  the  dispatch, 
and  the  telegraph  company.  Such  doctrine,  however,  has  no 
application  as  between  the  receiver  of  the  dispatch,  whose  suit 
is  in  tort  against  the  company  for  negligence  in  the  perform- 
ance of  a  public  duty,  and  the  telegraph  company.  From  the 
rule  that  assent  is  necessary  to  make  such  a  condition  as  the 
sixty  day  limit  binding,  it  necessarily  follows  that  mere  notice 
or  knowledge  of  such  condition  will  not  affect  the  receiver  of 
the  dispatch.  It  is  against  public  policy  that  a  telegraph  com- 
pany may  adopt  rules,  regulating  its  relations  with  its  patrons, 
which,  if  they  are  reasonable,  shall  be  binding  upon  such  patrons 
without  their  assent,  if  they  only  have  knowledge.  Counsel  for 
appellee  refer  to  the  case  of  Oppenheimer  v.  United  States  Exp. 
Co.,  69  111.  62,  18  Am.  Rep.  596,  as  supporting  the  doctrine  con- 
tended for  by  them ;  but  ' '  there  is  in  that  case  ( Oppenheimer  v. 
United  States  Exp.  Co.,  69  111.  62,  18  Am.  Rep.  596)  no  departure 
from  the  uniform  decisions  of  this  court,  that  a  carrier  cannot 
be  released  from  the  duties  and  liabilities  annexed  to  its  em- 
ployment, unless  the  shipper  assents  to  the  attempted  restric- 
tions": Boscowitz  V.  Adams  Exp.  Co.,  93  111.  523,  34  Am.  Rep. 
191. 

Some  of  the  cases  seem  to  hold  that  the  printed  conditions 
upon  blank  forms  of  telegraphic  dispatches,  including  the  one 
in  reference  to  the  limit  of  sixty  days,  are  mere  regulations,  and 
not  contracts  between  the  sender  of  the  message  and  the  tele- 
graph company.  The  force  of  the  distinction  thus  sought  to  be 
made  lies  in  the  fact  that,  if  the  conditions  or  stipulations  are 
considered  as  mere  regulations,  the  assent  of  the  sender  to  them 
is  not  necessary,  but  that  he  will  be  bound  if  they  are  brought 
home  to  his  knowledge ;  whereas,  if  they  are  held  to  be  parts  of 
a  contract,  the  assent  of  the  sender  must  be  shown  in  order  to 
bind  him :    Croswell  on  Law  of  Electricity,  sec.  493.    But  what- 

654 


WEBBE  V.  W.  U.  TELEGRAPH  CO.  §  170 

ever  may  be  the  correct  view  of  these  conditions  as  being  regula- 
tions or  contracts  where  the  controversy  is  between  the  sender 
of  the  dispatch  and  the  telegraphic  company,  we  are  of  the 
opinion  that  such  distinction  has  no  application  where  the  con- 
troversy is  between  the  company  and  the  receiver  of  the  dispatch : 
Croswell  on  Law  of  Electricity,  sec.  540.  There  is  no  proof  of 
contract  between  the  telegraph  company  and  the  person  to  whom 
the  message  is  addressed,  and,  therefore,  he  could  not  be  held 
bound  by  these  conditions  or  stipulations :  Croswell  on  Law  of 
Electricity,  sec.  504,  and  cases  cited  in  note  2. 

Counsel  for  appellee  rely  mainly  upon  the  case  of  Manier  v. 
Western  Union  Tel.  Co.,  94  Tenn.  442,  29  S.  W.  732,  as  author- 
ity for  the  position  that  such  conditions  and  stipulations,  includ- 
ing the  limit  of  sixty  days,  are  binding  upon  the  receiver,  as  well 
as  the  sender,  of  the  dispatch.  But  we  are  not  inclined  to  assent 
to  the  doctrine  of  the  Tennessee  case.  The  author  of  the  opinion 
in  that  case  refers  to  cases  holding  that  the  addressee  of  the  mes- 
sage is  not  bound  by  the  stipulation  as  to  the  sixty  clay  limit, 
because  he  did  not  make  the  contract ;  and  also  to  cases  holding 
to  the  contrary,  and  says  that  it  is  not  necessary  to  determine, 
in  the  case  there  under  consideration,  where  the  weight  of  au- 
thority lies.  The  conclusion  announced  in  that  case  rests  mainly 
upon  two  considerations,  namely :  1.  That  where  the  receiver  of 
the  message  is  a  patron  of  the  company,  he  will  be  presumed  to 
have  knowledge  of  the  form  of  the  contract  embodied  in  the 
blanks  used ;  2.  That  the  receiver 's  right  to  recover  rests  entirely 
upon  the  contract  of  sending,  and  upon  the  principle  that, 
where  two  parties  contract  for  the  benefit  of  a  third,  such  third 
party  may  maintain  an  action  for  the  breach  of  the  agreement 
in  his  own  right.  We  are  unable  to  see  that  these  considerations 
can  have  any  influence,  where  the  action  brought  by  the  receiver 
of  the  dispatch  is  an  action  in  tort  for  damages  for  the  careless 
and  negligent  performance  of  a  public  duty. 

The  opposite  view  from  that  contended  for  by  counsel  for 
appellee  is  supported  by  respectable  authority,  and  is  in  harmony 
with  the  decisions  heretofore  rendered  by  this  eo^yt,  and  is  a 
natural  corollary  from  such  decisions.  Gray  on  Communication 
by  Telegraph,  at  section  75,  says :  ' '  The  printed  matter  upon  the 
blank  form,  upon  which  a  message  is  delivered  at  the  place  of 
destination,  acquaints  the  receiver  usually  with  the  fact  that  the 
telegraph  company  will  not  be  liable  for  a  loss  in  any  case  in 
which  claim  for  that  loss  is  not  presented  in  writing  within 
sixty  days  after  sending  the  message.  As  the  receiver's  right  of 
action  is  purely  one  in  tort,  it  is  difficult  to  see  how  the  tele- 
graph company  can  arbitrarily  compel  a  claim  for  loss  to  be 

655 


§  170  OF  TELEGEAPH  COMPANIES. 

made  within  any  particular  time.  The  general  rule  is,  that  an 
action  of  tort  can  be  brought  without  other  notice  at  any  period 
within  the  time  allotted  to  it  by  the  statute  of  limitations." 
Upon  this  subject  the  supreme  court  of  Nebraska  says:  "The 
clause  printed  on  the  telegraph  blank  to  the  effect  that  the  tele- 
graph company  would  not  be  liable  for  damages  in  any  case, 
unless  the  claim  was  presented  in  writing  in  sixty  days,  was  and 
is  unreasonable  and  wholly  without  consideration  if  viewed  as 
a  contract  between  the  telegraph  company  and  the  sender  of  the 
message,  and  an  attempt  on  the  part  of  the  telegraph  company 
to  enact  for  itself  a  statute  of  limitations.  .  .  .  The  attempt, 
so  often  indulged  in  by  insurance  and  telegraph  companies  to 
prescribe  for  themselves  a  law,  is  not  one  that  appeals  to  the 
judgment,  or  commends  itself  to  the  conscience  of  this  court": 
Pacific  Tel.  Co.  v.  Underwood,  37  Neb.  315,  55  N.  W.  R.  1057,  40 
Am.  St.  R.  490. 

Croswell,  in  his  work  on  the  Law  Relating  to  Electricity,  sec- 
tion 557,  says :  "In  actions  of  tort  by  the  addressee  of  the  mes- 
sage, it  is  difficult  to  see  how  any  limit  of  time,  in  which  claims 
must  be  made  against  a  telegraph  company  ^f or  damages  occa- 
sioned by  error  or  negligence  in  sending  the  message,  can  aft'ect 
the  plaintiff.  In  such  cases,  the  plaintiff  has  no  privity  with  the 
sender  of  the  message,  but  sues  solely  for  the  breach  of  duty  by 
the  telegraph  company,  i.  e.,  the  failure  of  the  telegraph  com- 
pany to  perform  its  public  duty  of  transmitting  dispatches 
promptly  and  with  due  care,  and  has  nothing  to  do  with  the 
special  contract  between  the  sender  and  the  telegraph  company, 
and,  therefore,  whatever  stipulations  the  sender  may  make  with, 
the  telegraph  company  should  not  bind  the  addressee. ' ' 

The  learned  author  of  the  article  on  Telegraphs  and  Tele- 
phones, in  volume  25  of  the  American  and  English  Encyclo- 
pedia of  Law,  pages  807,  808,  says:  "Other  authorities  hold 
that  the  receiver's  action  is  not  on  the  contract,  but  for  the  tort, 
i.  e.,  for  the  breach  of  the  company's  public  duty.  Under  th!s 
view  of  the  rule,  the  stipulations  in  the  original  contract  can  have 
no  binding  effect  upon  the  receiver's  action.  As  a  matter  of  fact, 
the  telegraph  companies  endeavor  to  incorporate  the  stipulations 
into  the  message  as  delivered,  but  as  the  receiver  does  not  at- 
tach his  signature  thereto,  they  are  of  no  effect,  unless  it  can 
be  shown  that  they  were  brought  to  his  notice  and  assented  to 
by  him":  Pacific  Tel.  Co.  v.  Underwood,  37  Neb.  315,  55  N.  W. 
R.  1057,  40  Am.  St.  R.  490;  W.  U.  Tel.  Co.  v.  McKibben,  114 
Ind.  511 ;  W.  U.  Tel.  Co.  v.  Longwell,  5  N.  Mex.  308 ;  Herron  v. 
Western  Union  Tel.  Co.,  90  Iowa,  129;  Johnston  v.  Western 
Union  Tel.  Co.,  33  Fed.  Rep.  362 ;  De  la  Grange  v.  Southwestern 

656 


WEBBE  V.  W.  U.  TELEGRAPH  CO.  §  170 

Tel.  Co.,  25  La.  Ann.  383 ;  Harris  v.  Western  Union  Tel.  Co.,  9 
Phila.  88. 

It  is  well  settled  that,  even  if  the  stipulation  in  question  would 
be  binding  upon  the  receiver  of  the  dispatch  in  case  of  an  as- 
sent thereto,  it  is  a  question  for  the  jury  to  determine  whether 
there  was  such  assent  or  not ;  and,  even  if  mere  notice  or  knowl- 
edge of  the  stipulation  would  bind  the  receiver  of  the  dispatch, 
the  question  whether  such  receiver  had  notice  or  knowledge  is 
a  question  of  fact  to  be  determined  by  the  jury  from  all  the  facts 
and  circumstances  in  the  case :  Tyler  v.  Western  Union  Tel.  Co., 
60  111.  421,  14  Am.  Rep.  38 ;  Boscowitz  v.  Adams  Exp.  Co.,  93  111. 
523,  34  Am.  Eep.  191 ;  Croswell  on  Law  of  Electricity,  sec.  546. 

In  the  case  at  bar,  the  appellant  swore  that  he  had  never  read 
the  printed  matter  on  the  blank  received  by  him,  and  never 
knew  what  it  was ;  that  he  had  never  heard  of  the  sixty-day  con- 
dition until  a  few  days  before  testifying;  and  that  he  did  not 
know  what  the  terms  of  the  conditions  upon  the  blank  form 
were,  and  had  not  only  never  read  them  but  had  never  heard 
them  talked  about.  The  evidence,  it  is  true,  showed  that,  for  a 
number  of  years,  the  appellant  had  been  conducting  his  busi- 
ness correspondence  by  telegraph,  and  that  most  of  it  had  been 
conducted  over  the  lines  of  the  appellee,  and  that  he  had  re- 
ceived and  sent  most  of  the  telegrams  upon  the  blanks  of  the 
appellee.  This  proof  did  not  authorize  the  court  below  to  take 
the  case  from  the  jury,  and  direct  them  to  find  for  the  defend- 
ant. Even  if  the  circumstance  that  appellant  had  used  the 
blank  forms  of  the  appellee  for  a  number  of  years  had  a  tend- 
ency to  show  his  notice  or  knowledge  of  the  conditions  printed 
thereon,  yet  it  was  for  the  jury  to  say  what  effect  should  be  given 
to  such  circumstances,  considered  in  connection  with  all  the 
other  testimony  in  the  case.  Where  certain  consignees  were  fre- 
quent shippers  by  a  certain  line,  and  were  in  the  habit  of  re- 
ceiving bills  of  lading  with  certain  conditions  therein,  a  pre- 
sumption was  held  to  arise  that  such  consignees  were  familiar 
with  the  contents  of  the  bills  of  lading.  The  presumption  of  such 
familiarity,  however,  would  only  arise  out  of  the  fact  of  tEe 
use  of  the  blanks  where  there  was  no  evidence  to  the  contrary. 
The  presumption  that  thus  arises  is  not  conclusive:  Merchants' 
Dispatch  etc.  Co.  v.  Moore,  88  111.  136,  30  Am.  Rep.  541.  Here, 
whatever  presumption  may  have  arisen  against  the  appellant,  in 
favor  of  his  familiarity  with  the  terms  of  the  conditions  printed 
upon  the  blank  used  by  him,  was  rebutted  by  his  sworn  state- 
ment, that  he  had  never  read  the  terms  of  those  conditions,  and 
did  not  know  what  they  were.    Certainly,  it  was  the  duty  of  the 

42  657 


§§  170,  171  OF  TELEGKAPH  COMPANIES. 

court  to  leave  it  to  the  jury  to  say  whether  or  not  he  assented 
to  the  condition  in  regard  to  the  limit  of  sixty  days. 

For  the  error  in  taking  the  case  away  from  the  jury  and  in- 
structing them  to  find  for  the  defendant,  the  judgments  of  the 
appellate  court  and  of  the  circuit  court  of  Cook  county  are  re- 
versed, and  the  cause  is  remanded  to  the  latter  court  for  further 
proceedings  in  accordance  with  the  views  herein  expressed. 


171.     GRINNELL  V.  WESTERN  UNION  TELEGRAPH  CO., 
113  Mass.  299;  18  Am.  R.  485.     1873. 

Counts  in  contract  and  in  tort  joined  for  breach  of  a  contract, 
and  negligence  in  transmitting  a  telegraph  message  to  an  insur- 
ance company  for  renewal  of  insurance,  and  calling  for  an 
answer.  The  operator  omitted  the  word  ' '  answer, ' '  and  plaintiff 
thereupon  effected  new  insurance  at  a  cost  of  $35.  In  addition 
he  was  obliged  to  pay  the  first  company  $35,  which  sum  he  al- 
leged as  his  damages.  The  message  was  written  on  a  printed 
blank  requiring  repetition  of  the  message  and  payment  of  an 
additional  sum  if  the  telegraph  company  were  to  insure  correct 
transmission.  The  court  below  ruled  that  the  action  could  not 
be  maintained  for  more  than  twenty-five  cents,  the  charge  for 
sending  the  message. 

Gray,  C.  J.  The  liability  of  a  telegraph  company  is  quite 
unlike  that  of  a  common  carrier.  A  common  carrier  has  the 
exclusive  possession  and  control  of  the  goods  to  be  carried,  with 
peculiar  opportunities  for  embezzlement  or  collusion  with 
thieves;  the  identity  of  the  goods  received  with  those  delivered 
cannot  be  mistaken ;  their  value  is  capable  of  easy  estimate,  and 
may  be  ascertained  by  inquiry  of  the  consignor,  and  the  car- 
rier's compensation  fi:^ed  accordingly;  and  his  liability  in  dam- 
ages is  measured  by  the  value  of  the  goods.  A  telegraph  com- 
pany is  intrusted  with  nothing  but  an  order  or  message,  which 
is  not  to  be  carried  in  the  form  in  which  it  is  received,  but  is 
to  be  transmitted  or  repeated  by  electricity,  and  is  peculiarly 
liable  to  mistake ;  which  cannot  be  the  subject  of  embezzlement ; 
which  is  of  no  intrinsic  value;  the  importance  of  which  cannot 
be  estimated  except  by  the  sender,  nor  ordinarily  disclosed  by 
him  without  danger  of  defeating  his  own  purposes;  which  may 
be  wholly  valueless,  if  not  forwarded  immediately ;  for  the  trans- 
mission of  which  there  must  be  a  simple  rate  of  compensation; 
and  the  measure  of  damages  for  a  failure  to  transmit  or  d€- 

658 


GEINNELL  v.  W.  U.  TELEGEAPH  CO.  §  171 

liver  which,  has  no  relation  to  any  value  which  can  be  put  on 
the  message  itself. 

The  duty  of  a  telegraph  company,  as  defined  in  our  statutes,  is 
that  it  ''shall  receive  dispatches  from  and  for  other  telegraph 
lines,  companies  and  associations,  and  from  and  for  any  person; 
and  on  payment  of  the  usual  charges  for  transmitting  dispatches, 
according  to  the  regulations  of  the  company,  shall  transmit  th6 
same  faithfully  and  impartially."    Gen.  Stats.,  c.  64,  §  10. 

The  liability  of  a  telegraph  company  may  be  limited  by  reason- 
able stipulations  expressed  in  its  contracts  with  the  senders  of 
messages ;  and,  according  to  the  weight  of  authority,  a  regulation 
that  the  liability  of  the  company  for  any  mistake  or  delay  in  the 
transmission  or  delivery  of  a  message,  or  for  not  delivering  the 
same,  shall  not  extend  beyond  the  sum  received  for  sending  it, 
unless  the  sender  orders  the  message  to  be  repeated  by  sending 
it  back  to  the  office  which  first  received  it,  and  pays  half  the 
regular  rate  additional,  is  a  reasonable  precaution  to  be  taken 
by  the  company,  and  binding  upon  all  who  assent  to  it,  so  as  to 
exempt  the  company  from  liability  beyond  the  amount  stipulated, 
for  any  cause  except  willful  misconduct  or  gross  negligence  on 
the  part  of  the  company.  Ellis  v.  American  Telegraph  Co.,  13 
Allen,  226 ;  Redpath  v.  Western  Union  Telegraph  Co.,  112  Mass. 
71,  17  Am.  Rep.  69;  Camp  v.  Western  Union  Telegraph  Co., 
1  Mete.  (Ky.)  164,  71  Am.  D.  461;  Western  Union  Telegraph 
Co.  V.  Carew,  15  Mich.  525 ;  United  States  Telegraph  Co.  v.  Gil- 
dersleve,  29  Md.  232,  96  Am.  D.  519 ;  Breese  v.  United  States 
Telegraph  Co.,  48  N.  Y.  132,  8  Am.  Rep.  526. 

Such  a  regulation  does  not  undertake  wholly  to  exempt  the 
company  from  liability  for  loss,  but  merely  requires  the  other 
party  to  the  contract,  if  he  considers  the  transmission  and  de- 
livery of  the  message  to  be  of  such  importance  to  him  that  he 
proposes  to  hold  the  company  responsible  in  damages,  for  a  non- 
fulfillment of  the  contract  on  its  part,  beyond  the  amount  paid 
for  the  message,  to  increase  that  payment  by  one-half.  Even  a 
common  carrier  has  a  right  to  inquire  as  to  the  quality  and  value 
of  goods  or  packages  intrusted  to  him  for  carriage,  and  is  not 
liable  for  goods  of  unusual  value  if  false  answers  are  made  to 
his  inquiries.  Phillips  v.  Earle,  8  Pick.  182 ;  Dunlap  v.  Interna- 
tional Steamboat  Co.,  98  Mass.  371,  377,  378. 

In  the  leading  case  in  this  Commonwealth  of  Ellis  v.  Ameri- 
can Telegraph  Co.,  the  action  was  brought  for  an  error  in  trans- 
mitting a  message,  by  substituting  the  words  "seventy-five"  for 
"twenty-five;"  and  there  was  no  evidence  of  carelessness  or 
negligence,  except  this  error,  which  was  made  by  some  agent  of 
the  company  in  transmission.     The   defendants   requested  the 

659 


§  171  OF  TELEGKAPH  COMPANIES. 

judge  who  presided  at  the  trial  to  instruct  the  jury  that  on  these 
facts  they  were  not  liable.  But  the  judge  ruled  that,  notwith- 
standing the  terms  and  conditions  set  forth  in  the  printed  head- 
ing of  the  message  (which  were  substantially  like  those  in  the 
case  at  bar),  the  defendants  were  bound,  in  transmitting  the 
message,  to  make  use  of  ordinary  care,  attention  and  skill,  and 
were  liable  for  damages  arising  from  inattention  or  carelessness 
in  such  transmission,  and  not  produced  by  any  unexpected  or  un- 
foreseen accident;  and  that  the  difference  between  the  m'essage 
received  and  that  actually  delivered  was  prima  facie  evidence  of 
the  want  of  ordinary  care,  attention  and  skill  on  the  part  of 
the  defendants.     13  Allen,  226-228. 

Upon  exceptions  to  that  ruling,  the  court  held  that,  in  the 
business  of  transmitting  messages  by  telegraph,  as  in  the  ordi- 
nary employments  and  occupations  of  life,  men  were  bound  to 
the  use  of  due  and  reasonable  care,  and  were  liable  for  the  con- 
sequences of  their  negligence  in  the  conduct  of  their  business  to 
those  sustaining  loss  or  damage  thereby;  but  that  this  rule  did 
"not  operate  so  as  to  prevent  parties  from  prescribing  rea- 
sonable rules  and  regulations  for  the  management  of  the  busi- 
ness, or  establishing  special  stipulations  for  the  performance  of 
service,  which,  if  made  known  to  those  with  whom  they  deal, 
and  directly  or  by  implication  assented  to  by  them,  will  operate 
to  abridge  their  general  liability  at  common  law,  and  to  protect 
them  from  being  held  responsible  for  unusual  or  peculiar  hazards 
which  are  incident  to  particular  kinds  of  business."  It  was 
further  said :  "Of  course,  a  party  cannot  in  such  way  protect 
himself  against  the  consequences  of  his  own  fraud  or  gross 
negligence,  or  the  fraud  or  gross  negligence  of  his  servants  or 
agents."  "But  he  may  to  a  certain  extent,  in  the  mode  above 
indicated,  limit  the  extent  of  his  liability,  or  graduate  the  amount 
of  his  compensation,  according  to  the  risk  which  he  assumes,  as 
well  as  by  the  nature  of  the  service  which  he  renders."  13  Allen, 
234.  It  was  held  that  the  regulation  in  question  was  reason- 
able and  valid;  that  "the  defendants  were  entitled  to  insist 
on  a  compliance  with  that  part  of  their  regulations  which  re- 
quired that  the  message  should  be  repeated,  and  that  the  extent 
of  the  risk  should  be  made  known  to  them,  if  they  were  to  be 
held  to  insure  the  safe  and  correct  transmission  of  the  mes- 
sage, or,  in  case  of  failure,  to  be  responsible  for  all  the  dam- 
ages consequent  on  delays  or  errors."  And  the  court  declared 
that  it  was  mainly  for  these  reasons  that  the  instructions  to  the 
jury  could  not  be  supported.    13  Allen,  235-237. 

Although  that  action  was  by  the  receiver  of  the  message,  he 
was  treated  throughout  the  case  as  claiming  through  the  con- 

660 


GEINNELL  v.  W.  U.  TELEGRAPH  CO.  §  171 

tract,  of  which  he  had  notice,  made  with  the  company  by  the 
sender  of  the  message.  No  allusion  was  made,  in  the  judgment 
of  this  court,  to  the  nature  of  the  error  in  the  message,  or  to  its 
effect  as  evidence  of  negligence  on  the  part  of  the  company.  Nor 
was  it  suggested  that  there  was  any  insufficiency  in  the  proof 
of  negligence;  and  there  was  nothing  before  this  court  upon 
which  such  a  point  could  have  been  decided;  for  the  question 
whether  the  substitution  of  "seventy"  for  "twenty"  was  or  was 
not  of  itself  proof  of  negligence,  depended  upon  the  plainness 
of  the  writing  of  the  original  message,  which  could  only  be  ascer- 
tained by  inspection,  and  which  was  a  pure  question  of  fact  to 
be  determined  by  the  jury  or  the  court  below. 

As  the  instructions  at  the  trial  of  that  case  did  not  allow 
the  plaintiff  to  recover  without  proof  of  negligence  to  the  satis- 
faction of  the  jury,  the  judgment  of  this  court,  sustaining  the 
exceptions  to  those  instructions,  is  a  direct  adjudication  that 
the  regulations  in  question  exempted  the  company  from  liability 
for  ordinary  negligence  where  the  message  had  not  been  repeated 
and  the  additional  charge  paid. 

We  have  been  led  to  make  the  fuller  statement  of  that  case, 
because  its  scope  and  effect  appear  to  us  to  have  been  misappre- 
hended in  Sweatland  v.  Illinois  &  Mississippi  Telegraph  Co.,  27 
la.  433,  1  Am.  Rep.  285,  which  is  the  only  decision,  cited  at 
the  bar,  inconsistent  with  the  law  upon  the  subject  as  declared 
by  this  court. 

In  Western  Union  Telegraph  Co.  v.  Buchanan,  35  Ind.  429, 
1  Am.  Rep.  744,  the  action  was  not  for  damages,  but  for  a 
penalty  imposed  by  statute,  which  could  not  of  course  be  re- 
stricted by  the  contract  of  the  parties ;  and  it  was  assumed  that 
in  the  case  of  a  message  not  repeated  in  accordance  with  the  rule, 
the  company  would  not  be  liable  for  damages  beyond  the  amount 
stipulated,  except  in  case  of  gross  negligence.  In  True  v.  In- 
ternational Telegraph  Co.,  60  Me.  9,  11  Am.  Rep.  156,  the 
regulation  which  was  held  invalid  purported  wholly  to  exempt 
the  company,  in  ease  of  messages  sent  by  night,  from  any  li- 
ability beyond  the  amount  received;  and  the  opinion  of  the 
majority  of  the  court  appears  to  be  founded  on  a  false  analogy 
between  telegraph  companies  and  common  carriers,  and  is  op- 
posed by  a  very  able  dissenting  opinion  of  Chief  Justice  Apple- 
ton.  In  Squire  v.  Western  Union  Telegraph  Co.,  98  Mass.  232,  93 
Am.  D.  157;  and  in  Leonard  v.  New  York,  Albany  &  Buffalo 
Telegraph  Co.,  41  N.  Y.  544,  1  Am.  Rep.  446,  there  was  no 
regulation  limiting  the  liability  of  the  corporation  against  which 
the  action  was  brought.  In  New  York  &  Washington  Telegraph 
Co.  V.  D:-yburg,  35  Pa.  St.  298,  78  Am.  D.  338,  the  action  was 

eei 


§  171  OF  TELEGEAPH  COMPANIES, 

by  the  receiver  of  a  message,  who  had  no  notice  of  the  regula- 
tion ;  and  was  in  substance  not  founded  upon  contract,  but  upon 
a  misrepresentation  by  the  company  employed  to  send  the  mes- 
sage, by  which  the  receiver  was  misled  and  injured.  See  Ellis 
V.  American  Telegraph  Co.,  13  Allen,  226,  238 ;  May  v.  Western 
Union  Telegraph  Co.,  112  Mass.  90,  95. 

In  the  case  at  bar,  the  form  of  the  dispatch,  delivered  by  the 
defendant's  agent  to  the  plaintiff,  and  filled  up  and  signed  by 
the  latter,  constituted  the  contract  between  the  parties.  The 
plaintiff,  having  thus  expressly  agreed  that,  if  he  did  not  order 
the  message  to  be  repeated,  the  liability  of  the  defendant  for 
mistakes  or  delays  in  its  transmission  or  delivery  should  be  lim- 
ited to  the  sum  paid,  and  not  having  ordered  it  to  be  repeated 
and  paid  the  increased  rate  required  in  case  of  repetition,  could 
not  charge  the  defendant  for  liability,  beyond  the  amount  orig- 
inally paid  for  the  transmission  of  the  message,  for  a  mistake 
in  the  transmission,  at  least  without  proving  willful  default  or 
gross  negligence  on  the  part  of  the  company. 

There  was  no  offer  at  the  trial  to  show  any  wanton  disregard 
of  duty  or  gross  negligence  on  the  part  of  the  company  or  its 
agents.  The  offer  to  prove  that  "there  was  negligence  on  the 
part  of  the  operator,"  in  not  sending  the  whole  message  re- 
ceived, must  be  understood  to  mean  want  of  ordinary  care.  No 
question  therefore  arises  whether  the  company  could  be  charged 
by  reason  of  gross  negligence,  as  held  in  United  States  Telegraph 
Co.  V.  Gildersleve,  29  Md.  232,  96  Am.  D.  519,  and  suggested  in 
Ellis  V.  American  Telegraph  Co.,  13  Allen,  226,  234. 

The  offer  of  the  plaintiff  to  prove  that  the  repeating  of  the 
message  as  received  by  the  operator  of  the  telegraph  at  Boston, 
to  the  operator  at  New  Bedford,  by  whom  it  was  sent,  would  not 
have  disclosed  the  omission  in  the  message,  was  rightly  rejected 
as  immaterial.  The  report  does  not  show  how  such  evidence 
could  possibly  have  proved  that  fact.  But  the  conclusive  answer 
to  it  is  that  the  plaintiff,  having  omitted  to  fulfill  the  condition, 
on  which  alone,  by  the  terms  of  the  express  contract  between  the 
parties,  he  could  recover  for  any  mistake  in  transmission  more 
than  the  amount  of  his  original  payment,  cannot  be  permitted  to 
prove  that  his  own  failure  to  fulfill  his  contract  did  not  affect 
the  result.  The  ohiter  dicta  of  Chief  Justice  Bigelow  in  Ellis 
V.  American  Telegraph  Co.,  13  Allen,  226,  238— that  it  would 
be  a  question  of  fact  for  the  jury  whether  the  mistake  in  the 
dispatch  would  have  been  prevented  or  corrected  by  the  repeti- 
tion of  the  message;  and  that  of  course  the  company  would  be 
liable  for  any  negligence  causing  damage,  which  would  not  have 
been  prevented  by  a  compliance  with  the  rules — are  somewhat 

662 


W.  U.  TELEGRAPH  CO.  v.  VAN  CLEAVE.     §§  171,  172 

wanting  in  precision,  owing  doubtless  to  the  fact  that,  as  he 
observed,  no  such  question  was  before  the  court.  They  might 
perhaps  apply  where  the  neglect  sued  for  was  in  a  matter  not 
within  the  terms  of  the  regulations  as,  for  instance,  where  no 
attempt  at  all  was  made  to  send  the  message.  Birney  v.  New 
York  &  Washington  Tel.  Co.,  18  Md.  341,  81  Am.  D.  607.  But 
that  they  were  not  intended  to  countenance  the  admission  of  such 
evidence  as  was  offered  in  the  present  case,  upon  any  point  cov- 
ered by  the  contract  of  the  parties,  is  manifest  from  his  state- 
ment, only  a  few  lines  above,  that  it  might  be  a  sufficient  answer 
to  the  claim  against  the  company,  ' '  that  according  to  the  reason- 
able regulations  by  which  they  were  governed  in  the  perform- 
ance of  their  undertaking  toward  the  plaintiff,  and  of  which  he 
had  notice,  they  have  committed  no  breach  of  duty  for  which 
they  can  be  held  liable  to  him." 

The  remaining  questions  may  be  briefly  disposed  of.  The  evi- 
dence of  usage  and  understanding  was  clearly  incompetent  to 
vary  the  terms  or  effect  of  the  written  contract  between  the 
parties.  The  plaintiff 's  omission  to  read  that  contract  cannot  re- 
lieve him  from  being  bound  by  his  signature.  Redpath  v.  West- 
ern Union  Telegraph  Co.,  112  Mass.  71,  73,  17  Am.  Rep.  69; 
Western  Union  Telegraph  Co.  v.  Carew,  15  Mich.  525;  Wolf 
V.  Western  Union  Telegraph  Co.,  62  Pa.  St.  83,  1  Am.  R.  387 ; 
Breese  v.  United  States  Telegraph  Co.,  48  N.  Y.  133,  8  Am. 
Rep.  526.  The  subsequent  acts  and  declarations  of  the  defend- 
ant's agents,  not  connected  with  the  transmission  of  the  message, 
were  not  competent  evidence  to  charge  the  defendants.  Mac 
Andrew  v.  Electric  Telegraph  Co.,  17  C.  B.  3;  United  States 
Telegraph  Co.  v.  Gildersleve,  29  Md.  232,  96  Am.  D.  519 ;  Sweat- 
land  V.  Illinois  &  Mississippi  Telegraph  Co.,  27  Iowa,  433,  1 
Am.  Rep.  285 ;  Robinson  v.  Fitchburg  &  Worcester  Railroad  Co., 
7  Gray,  92. 

The  result  is  that  according  to  the  ruling  at  the  trial  and 
the  terms  of  the  report  there  must  be  judgment  for  the  plaintiff 
for  25  cents. 


172.     WESTERN  UNION  TELEGRAPH  CO.  V.  VAN 
CLEAVE, 

107  Ky.  464;  54  S.  W.  B.  827;  92  Am.  St.  E.  366.    1900. 

Hazelrigg,  C.  J.  The  appellee  recovered  judgment  of  appel- 
lant for  the  sum  of  one  thousand  dollars  for  mental  angl^ish 
caused  by  his  inability  to  attend  his  brother 's  funeral,  and  which 
nonattendance,  he  avers,  was  owing  to  the  negligent  failure  of 

663 


§  172  OF  TELEGKAPH  COMPANIES. 

the  appellant  to  deliver  to  him  in  a  reasonable  time  a  telegiara 
announcing  the  death  of  that  relative.  The  message  was  sent 
from  the  appellant's  office  at  Lake  City,  Missouri,  at  about  9 
o'clock  on  the  evening  of  January  1,  1894,  and  reached  Le- 
banon, Kentucky,  the  place  of  its  destination,  at  11 :44  o'clock  on 
the  same  evening.  It  was  not  delivered  to  the  appellee  until 
next  morning  at  about  8  o'clock,  and  too  late  for  the  first  train 
out  that  morning.  It  may  be  assumed,  for  the  purposes  of  the 
case,  that  the  failure  of  appellee  to  get  the  train  was  the  sole 
cause  of  his  not  attending  the  funeral. 

The  appellant  resists  recovery  on  the  grounds:  1.  That  men- 
tal anguish,  accompanied  by  no  physical  injury,  gives  no  cause 
of  action;  2.  That  the  message  was  a  "night"  message,  and, 
according  to  the  terms  indorsed  on  the  blank  on  which  it  was 
written,  was  to  be  delivered  "not  earlier  than  the  morning  of 
the  next  ensuing  business  day";  and  3.  That  its  office  at  Leb- 
anon during  the  night  was  in  charge  of  an  operator,  who  was 
also  the  agent  and  night  operator  for  the  railroad  company, 
and  the  rules  of  his  employment  forbid  his  leaving  the  office 
at  night  for  any  purpose;  that  a  delivery  boy  was  kept  only 
from  6  o'clock  A.  M.  until  6  o'clock  P.  M.,  because  the  business 
did  not  justify  night  delivery. 

Other  minor  defenses  were  presented,  but,  as  we  shall  see, 
they  need  not  be  considered. 

The  ground  first  suggested  has  furnished  the  occasion  for 
much  controversy,  and  much  conflict  of  authority.  It  is  prob- 
ably in  accordance  with  the  views  of  a  majority  of  the  state 
courts  that  mental  anguish  and  injured  feelings  alone,  and  un- 
accompanied with  physical  injury,  do  not  furnish  ground  for 
recovery.  But  in  this  state  the  rule  has  been  announced  other- 
wise: Chapman  v.  Western  Union  Tel.  Co.  (1890),  90  Ky.  265, 
13  S.  W.  R.  880. 

And  so  likewise  a  recovery  in  this  class  of  cases  can  be  had 
under  the  decisions  of  the  states  of  Texas,  Alabama,  Indiana, 
Iowa,  North  Carolina,  and  Tennessee.  It  may  be  admitted  that 
there  are  difficulties  in  the  way  of  an  exact  measurement  of 
such  damages,  but  it  does  not  seem  to  us  that  this  is  a  sufficient 
reason  why  a  negligent  public  carrier  should  escape  with  merely 
nominal  damages.  The  same  difficulty  of  accurately  measuring 
such  damages  arises  in  cases  of  slander,  breach  of  marriage 
contract,  and  in  cases  where  mental  suffering  is  accompanied 
with  physical  pain. 

If,  as  argued,  the  law  does  not  deal  generally  with  the  feel- 
ings and  emotions,  it  may  be  answered  that  here  the  parties 
themselves  have  contracted  with  respect  to  those  very  things, 

664 


W.  U.  TELEGRAPH  CO.  v.  VAN  CLEAVE.  §  172 

or,  at  least,  have  contracted  with  respect  to  those  things  which 
naturally  affect  the  feelings  and  emotions. 

For  the  purpose  of  having  him  attend,  a  message  is  sent  to 
a  son,  informing  him  of  his  mother's  death,  and  the  date  of 
her  funeral  and  burial.  It  must  be  supposed  that  a  failure  to 
deliver  such  a  message  will  cause  mental  suffering;  and  this 
suffering  is,  therefore,  a  consequence  or  result  within  the  con- 
templation of  the  parties.  This  is  true  whether  the  carrier  is 
sued  on  its  contract  or  because  of  its  failure  to  perform  a  pub- 
lie  duty  as  a  common  carrier  of  intelligence. 

It  is  an  old  doctrine  that,  "when  the  parties  have  made  a 
contract  which  one  of  them  has  broken,  the  damages  which  the 
other  party  ought  to  receive  in  respect  of  such  breach  of  con- 
tract should  be^such  as  may  fully  and  reasonably  be  considered 
either  as  arising  naturally — i.  e.,  according  to  the  usual  course 
of  things — from  such  breach  of  contract  itself,  or  such  as  may 
be  reasonably  supposed  to  have  been  in  the  contemplation  of 
both  parties  at  the  time  they  made  the  contract  as  the  probable 
result  of  the  breach  of  it":  Hadley  v.  Baxendale,  9  Ex.  341. 

The  rule  is  certainly  not  less  comprehensive  if  applied  as  a 
test  for  the  ascertainment  of  the  liability  of  a  common  carrier 
who  may  violate  its  public  duty.  The  subject  matter  of  the 
undertaking  by  the  carriers  is  not  of  a  pecuniary  nature,  and 
the  breach  of  the  undertaking  cannot  be  measured  by  an  at- 
tempted ascertainment  of  what  money  is  lost  by  reason  of  the 
breach.  As  the  question,  however,  must  be  regarded  as  a  set- 
tled one  in  this  state,  we  need  not  elaborate  this  branch  of  the 
case  further.  The  doctrine  is  fully  supported  in  the  recent 
WTll-considered  cases  of  Mentzer  v.  "Western  Union  Tel.  Co. 
(1895),  93  Iowa  752,  62  N.  W.  R.  1,  57  Am.  St.  R.  294,  and 
Cashion  v.  Tel.  Co.  (1898),  123  N.  C.  270,  31  S.  E.  R.  493,  where 
all  the  cases  are  collated. 

We  are  of  the  opinion,  however,  that  the  second  and  third 
points  suggested  are  conclusive  against  appellee's  right  of  re- 
covery. While  the  nature  of  his  action  is  in  tort,  and  not  on 
a  contract — as  he  had  none  with  the  company — he  cannot  recover 
if  the  company  has  complied  with  the  terms  of  its  contract 
and  undertaking  with  the  sender  of  the  message,  provided,  in- 
deed, those  terms  are  such  as  may  reasonably  be  imposed  and 
agreed  upon.  That  night  mesages  are  a  business  necessity,  and 
contracts  of  the  kind  made  here  for  delivery  of  such  messages 
on  the  next  morning  after  sending  them  may  be  made,  cannot 
be  doubted  in  the  face  of  the  authorities  and  on  principle :  Hib- 
bard  v.  Tel.  Co.,  33  Wis.  558,  14  Am.  R.  775 ;  Fowler  v.  West- 

665 


|§  172,  173  OF  TELEGEAPH  COMPANIES. 

era  Union  Tel.  Co.,  80  Me.  381,  15  Atl.  R.  29,  6  Am.  St.  R.  211, 
and  cases  cited. 

The  contract  enables  the  Sender  to  get  cheaper  rates,  and  yet 
have  his  message  delivered  in  time  to  be  acted  upon  the  next 
morning;  and  it  enables  the  company  to  send  the  message  dur- 
ing the  odd  hours  of  the  night,  when  business  is  not  press- 
ing, and  when  it  may  furnish  the  service  at  a  cheaper  rate.  The 
court  below,  therefore,  erred  in  striking  this  plea  from  the  com- 
pany's answer. 

We  think  it  likewise  competent  for  such  companies  to  estab- 
lish reasonable  hours  within  which  their  business  may  be  trans- 
acted, and  they  may  fix  those  hours  with  reference  to  the  quan- 
tity of  business  done.  They  may  not  be  required  to  employ 
both  a  day  and  a  night  messenger,  if  it  be  apparent  that  the 
business  of  the  office  will  not  justify  such  employment.  This 
we  understand  to  be  the  rule  everywhere :  Western  Union  Tel. 
Co.  V.  Harding,  103  Ind.  505,  3  N.  E.  R.  172;  Western  Union 
Tel.  Co.  V.  Wingate,  6  Tex.  Civ.  App.  394,  25  S.  W.  R.  439 ;  West- 
ern Union  Tel.  Co.  v.  McCoy,  Tex.  Civ.  App.,  Apr.  3,  1895,  31 
S.  W.  R.  210.  Under  the  proof  on  the  points  last  named,  the 
law  is  for  the  defendant,  and  a  peremptory  instruction  should 
have  been  given. 

Wherefore  the  judgment  is  reversed  for  proceedings  not  in- 
consistent with  this  opinion. 


173.     LEAVELL  V.  WESTERN  UNION  TELEGRAPH  CO., 

116  N.  C.  211;  21  8.  E.  B.  391;  47  Am.  St.  B.  798.     1895. 

Appeal  from  penalty  imposed  on  defendants  by  railroad  com- 
missioners for  violation  of  schedule  tariff  rates  for  telegraph 
messages. 

Clark,  J.  In  Atlantic  Express  Co.  v.  Wilmington  etc.  R.  R. 
Co.,  Ill  N.  C.  463,  16  S.  E.  R.  393,  32  Am.  St.  R.  805,  this  court 
affirmed  the  constitutionality  of  the  act  (Acts  1891,  c.  320) 
establishing  the  Railroad  and  Telegraph  Commission.  In  Mayo 
V.  Western  Union  Tel.  Co.,  112  N.  C.  343,  16  S.  E.  R.  1006,  it 
sustained  the  power  of  such  commission,  under  section  26  of 
said  act,  to  establish  rates  for  telegraph' companies.  In  Railroad 
Commission  v.  Western  Union  Tel.  Co.,  113  N.  C.  213,  18  S.  E. 
R.  389,  the  court  held  that  telegraphic  messages  transmitted 
by  a  company  from  and  to  points  in  this  state,  although  traver- 
sing another  state  in  the  route,  do  not  constitute  interstate  com- 

666 


LEAVELL  V.  W.  U.  TELEGRAPH  CO.  §  173 

merce  and  are  subject  to  the  tariff  regulation  of  the  commission. 
In  this  it  followed  the  unanimous  opinion  of  the  supreme  court 
of  the  United  States,  delivered  by  Fuller,  C.  J.,  in  Lehigh  Valley 
R.  R.  Co.  V.  Pennsylvania,  145  U.  S.  192,  12  Sup.  Ct.  R.  806.  To 
the  same  purport,  Campbell  v.  Chicago  etc.  Ry.  Co.,  86  la.  587, 
53  N.  W.  R.  351. 

In  the  present  case  the  commission  find  as  a  fact  that  "the 
defendant  has  a  continuous  line  by  which  messages  may  be 
transmitted  from  Wilson  to  Edenton  and  other  adjacent  points 
in  North  Carolina,  but  this  line  traverses  a  part  of  the  state  of 
Virginia,  passing  through  the  city  of  Norfolk ' ' ;  and  it  properly 
holds  upon  the  evidence  "that  the  telegraph  office  at  Edenton 
is  under  the  control  of  the  defendant,  and  the  operator,  though 
employed  by  the  railroad  company,  is  the  agent  and  operator  of 
the  defendant."  It  necessarily  follows  from  this  state  of  facts 
that  as  the  defendant  could  have  sent  the  message  the  w^hole  dis- 
tance over  its  own  line  it  cannot  be  heard  to  say  that  it  did  not 
do  M^hat  it  ought  to  have  done,  and  thus  collect  fifty  cents  for 
the  message  instead  of  twenty-five,  as  allowed  by  the  commission 
tariff.  The  defense  set  up  that  in  fact  it  only  carried  the  mes- 
sage to  Norfolk  and  then  paid  another  company  to  forward  it  to 
Edenton,  cannot  be  regarded  when  it  might  itself  have  completed 
the  delivery  of  the  message.  The  defendant  seeks  to  excuse  itself 
on  the  plea  that  it  has  only  one  wire  to  Edenton,  and  that  this  is 
fully  occupied  at  that  office  by  the  work  it  does  for  the  railroad 
company.  But  it  is  the  duty  of  the  telegraph  company  to  have 
sufficient  facilities  to  transact  all  the  business  offered  to  it  for  all 
points  at  which  it  has  offices.  If  the  press  of  business  offered  is 
so  great  that  one  wire  or  one  operator  at  a  point  is  not  sufficient, 
it  is  the  duty  of  the  company  to  add  another  wire  or  an  addi- 
tional employee.  It  is  not  a  mere  private  business,  but  a  public 
duty  which  the  defendants  by  their  franchise  are  authorized  to 
discharge.  It  is  further  to  be  noted  that  in  giving  to  the  rail- 
road company  the  preference  in  the  use  of  their  line  to  Eden- 
ton, while  at  other  points,  as  Moyock,  Centreville,  and  Hertford 
on  the  same  line,  the  public  is  admitted  to  the  use  of  the  wire, 
the  defendant  is  making  a  forbidden  and  illegal  discrimination  in 
favor  of  one  customer  and  against  the  public  at  large,  as  was  inti- 
mated in  Railroad  Commission  v.  Western  Union  Tel.  Co.,  113 
N.  C.  213,  18  S.  E.  R.  389.  The  findings  of  fact  in  evidence 
are  fuller,  and  present  a  somewhat  different  and  stronger  case 
against  the  defendant  than  in  Albea's  case.  By  section  11  of  the 
defendant's  contract  with  the  railroad  company  the  defendant 
remains  owner  of  the  telegraph  line  to  Edenton,  North  Carolina, 
and  its  belongings,  which  are  to  remain  "part  of  its  general 

667 


§§  173,  174  OF  TELEGRAPH  COMPANIES. 

telegraph  system"  and  "to  be  controlled  and  regulated  by  the 
telegraph  company."  Section  3  of  the  contract  gives  the  rail- 
road messages  precedence  over  commercial  business,  but  stipu- 
lates that  when  railroad  business  shall  require  the  exclusive  use  of 
one  wire  the  telegraph  company  shall,  on  sixty  days'  notice,  fur- 
nish material  for  a  second  wire,  which  second  wire  shall  be  used 
for  railroad  business  exclusively  and  such  commercial  business 
as  can  be  done  without  interfering  with  railroad  business.  Sec- 
tion 6  provides  that  where  the  railroad  company  shall  open  offices, 
the  operators  ''acting  as  agents  of  the  telegraph  company"  shall 
receive  such  commercial  and  public  telegrams  as  may  be  of- 
fered, collecting  rates  prescribed  by  the  telegraph  company,  and 
render  monthly  statements  and  pay  over  the  receipts  to  the  tele- 
graph company.  Section  7  provides  that  whenever  the  volume  of 
l3usiness  at  any  point  justifies  it,  the  telegraph  company  shall 
put  in  an  additional  operator.  It  will  be  thus  seen  that  the 
line  to  Edenton  is  an  integral  part  of  the  defendant's  general 
telegraph  system.  It  is  only  by  virtue  of  its  franchise  as  a 
telegraph  company  that  it  can  operate  its  line  to  Edenton  at 
all.  It  cannot  discriminate  at  that  point  in  favor  of  or  against 
any  customer.  It  cannot  subtract  itself  from  obedience  to  the 
rates  prescribed  by  the  authority  of  the  state,  acting  through 
the  commission,  by  a  contract  giving  one  customer,  the  railroad, 
preference  in  business,  and  pleading  that  such  business  occu- 
pies the  only  wire  it  has.  The  discrimination  is  itself  illegal. 
Besides,  if  it  were  not,  the  small  cost  of  an  additional  wire, 
which  it  is  common  knowledge  does  not  exceed  ten  dollars  per 
mile,  furnishes  no  ground  to  exempt  the  defendant  from  furnish- 
ing the  additional  facility  to  do  the  business  for  all.  The  charge 
of  a  double  rate  between  Edenton  and  other  points  in  North 
Carolina  is  a  far  heavier  imposition  upon  the  public  than  the 
cost  of  the  additional  wire  to  defendant,  and  is  just  the  kind  of 
burden  and  discrimination  which  the  commission  was  estab- 
lished to  prevent.  In  Railroad  Commission  v.  Western  Union 
Tel.  Co.,  113  N.  C.  213,  ho  commercial  message  was  tendered, 
and  the  point  now  decided  was  not  presented  by  the  record. 
The  ruling  of  the  commission  is  in  all  respects  affirmed. 


174.    ITARKNESS  V.  WESTERN  UNION  TELEGRAPH  CO., 

73  la.  190;  34  N.  W.  R.  811;  5  Am.  St.  B.  672.     1887. 

Action  for  loss  due  to  delay  in  delivering  a  telegram.     Judg- 
ment for  plaintiff. 

668 


iIaekness  v.  w.  u.  telegraph  CO.  §  174 

Seevers,  J.  The  material  facts  are  that  the  plaintiff  is  a 
resident  of  the  state  of  Iowa,  and  had  a  suit  pending  in  the 
state  of  Nebraska,  which  it  was  expected  would  be  reached  for 
trial  on  the  thirtieth  day  of  October,  1884.  W.  C.  Sloan,  one 
of  the  plaintiff's  attorneys,  was  a  resident  of  the  state  of  Ne- 
braska, and  A.  M.  Walters  was  also  her  attorney,  who,  however, 
was  a  resident  of  the  state  of  Iowa.  Both  said  attorneys  were 
expected  to  take  part  in  the  trial  of  the  suit.  The  plaintiff 
intended  to  start  from  her  home  in  Iowa  with  her  witnesses  and 
attorney  on  the  morning  of  the  29th  of  October,  so  that  she 
could  be  present  when  the  case  was  called  for  trial  on  the  fol- 
lowing day.  During  the  night  of  the  27th  of  October  a  message 
was  delivered  to  the  defendant  in  these  words : — 

"Fairmount,  Neb.,  October  5,  1884. 
"To  A.  M.  Walters,  Villisca,  Iowa:    Do  not  come  till  No- 
vember 5th.     Court  adjourned  till  then. 

''W.  C.  Sloan.'' 

Such  message  was  a  half-rate  or  night  message,  and  Sloan 
paid  the  defendant  forty  cents  for  transmitting  the  same.  The 
message  was  received  at  Villisca,  October  28th,  about  one  o  'clock, 
A.  M.,  at  which  place  Walters  resided,  but  was  not  delivered  to 
him  until  October  31st.  Plaintiff  started  to  Nebraska  on  October 
29th,  with  her  witnesses  and  attorneys,  and  thereby  incurred 
expenses,  Avhich  she  paid,  and  this  action  is  brought  to  recover 
the  same  of  the  defendant,  -who  had  no  knowledge  for  what  pur- 
pose the  message  was  sent,  other  than  is  disclosed  on  its  face. 
Nor  had  the  defendant  any  knowledge  that  Sloan  was  acting 
for  the  plaintiff,  or  that  she  had  a  suit  pending  in  Nebraska. 
The  contract  was  made  wath  Sloan,  and  is  attached  to  the  mes- 
sage, the  material  portion  of  which  is  as  follows : — 

''(Form  No.  45.) 

**The  Western  Union  Telegraph  Company. 

''Night  Message. 

"The  business  of  telegraphing  is  subject  to  errors  and  delays 
arising  from  causes  which  cannot  at  all  times  be  guarded  against, 
including  sometimes  negligence  of  servants  and  agents  whom 
it  is  necessary  to  employ.  Errors  and  delays  may  be  prevented 
by  repetition,  for  which,  during  the  day,  half-price  extra  is 
charged  in  addition  to  the  full  tariff  rates.  The  Western  Union 
Telegraph  Company  will  receive  messages,  to  be  sent  without 
repetition,  during  the  night,  for  delivery  not  earlier  than  the 
morning  of  the  next  ensuing  business  day,  at  reduced  rates,  but 

669 


§  174  OF  TELEGKAPH  COMPANIES. 

in  no  case  for  less  than  twenty-five  cents  toll  for  a  single  mes- 
sage, and  upon  the  express  condition  that  the  sender  will  agree 
that  he  will  not  claim  damage  for  errors  or  delays,  or  for  non- 
delivery of  such  messages  happening  from  any  cause,  beyond  a 
sum  equal  to  ten  times  the  amount  paid  for  transmission;  and 
that  no  claim  for  damages  shall  be  valid  unless  presented  in 
writing  within  thirty  days  after  sending  the  message." 

1.  It  is  objected  that  the  court  erred  in  rendering  judgment 
for  the  plaintiff,  because  the  message  was  neither  sent  by  nor 
to  her^  and  no  contract  was  made  with  her.  The  court  was 
justified  in  finding  that  both  Sloan  and  Walters  were  the  agents 
a;id  attorneys  of  the  plaintiff,  and  that  the  telegram  was  sent 
by  one  of  them,  and  received  by  the  other,  for  the  use  and 
benefit  of  the  plaintiff.  Therefore  she  may  well  be  said  to  be 
an  undisclosed  principal,  and  in  such  case  we  understand  the 
rule  to  be  that  such  principal,  as  the  "ultimate  party  in  interest, 
is  entitled,  against  third  persons,  to  all  advantages  and  benefits 
of  such  acts  and  contracts  of  his  agents, ' '  and  the  principal  may 
sue  in  his  own  name  on  the  contract :  Story  on  Agency,  sec.  418 ; 
National  Life  Ins.  Co.  v.  Allen,  116  Mass.  398 ;  Gage  v.  Stimson, 
26  Minn.  64,  1  N.  W.  R.  806.  The  fact  that  the  defendant  had 
no  knowledge  that  the  plaintiff  w^as  in  fact  principal,  and  that 
the  telegram  was  sent  for  her  use  and  benefit,  is  immaterial,  ex- 
cept that  it  may  be  true  that  the  defendant  may  set  up  as  a 
defense  any  matters  that  would  constitute  a  defense  if  the  suit 
was  brought  in  the  name  of  the  agent,  which  occurred  prior  to 
the  disclosure  of  the  principal. 

2.  It  is  insisted  that  the  court  erred  in  finding  that  the  de- 
fendant was  negligent  in  failing  to  deliver  the  telegram  earlier 
than  it  did.  It  will  be  observed  that  the  telegram  was  received 
by  the  agent  of  the  defendant  at  Villisca,  Iowa,  on  the  morning 
of  the  28th  of  October^  and  that  it  was  not  delivered  until  the 
thirty-first  day  of  that  month.  The  court  was  justified  in  finding 
that  defendant  was  negligent,  because  no  excuse  whatever  for  the 
failure  to  deliver  the  telegram  on  the  twenty-eighth  day  of  Octo- 
ber is  given.  The  delay  was  such  as  to  cast  on  the  defendant  the 
burden  of  explaining  the  cause  of  the  delay. 

3.  It  is  insisted  that  the  contract  limits  the  liability  of  the 
defendant,  and  that  the  recovery  cannot  exceed  such  limit.  It 
has  been  held  that  it  is  competent  for  a  telegraph  company  to 
restrict  its  liability,  as  was  done  in  this  case,  but  that  it  cannot 
contract  against  its  own  negligence  in  failing  to  transmit  and 
deliver  the  message :  Sweatland  v.  Illinois  etc.  Tel.  Co.,  27  Iowa 
433,  1  Am.  R.  285 ;  Manville  v.  Western  Union  Tel.  Co.,  37  Iowa 
214,  18  Am.  R,  8.    But  it  is  urged  that  the  contract  was  made 

670 


W.  U.  TELEGEAPH  CO.  v.  MITCHELL.    §§  174,  175 

with  Sloan,  and  that  he  can  only  recover  the  amount  stipulated 
in  the  contract,  for  the  reason  that  the  money  expended  by  him 
was  the  amount  paid  for  the  message,  and  that  this  is  the  extent 
of  the  plaintiff's  recovery,  for  the  reason  that  she  is  an  undis- 
closed principal,  and  not  known  in  the  transaction.  We  do  not 
concur  in  this  proposition,  but  think  that,  as  the  telegram  was 
sent  and  received  for  the  benefit  and  use  of  the  plaintiff,  she 
may  recover  such  damages  as  she  has  sustained,  subject  only  to 
any  payments  in  liquidation  of  damages  made  by  the  defendant 
to  Sloan  prior  to  the  time  defendant  had  knowledge  that  the 
telegram  was  sent  for  the  use  of  the  plaintiff,  and  that  she  was 
the  principal  in  the  transaction. 

4.  It  is  further  insisted  that  the  plaintiff  recovered  $24.52 
more  than  in  any  event  she  was  entitled  to.  We  deem  it  sufficient 
to  say  that  we  cannot  concur  in  this  proposition. 

Affirmed. 


175.     WESTERN  UNION  TELEGRAPH  CO.  V.  MITCHELL, 

91  Tex.  454;  66  Am.  St.  B.  906.     1898. 

Case,  certified  by  court  of  civil  appeals  to  determine,  among 
other  things,  whether  the  trial  court  ruled  correctly  in  charging 
in  effect  that  if  the  telegraph  company  could  not  find  the  ad- 
dressee the  message  should  have  been  delivered  to  his  wife.  The 
telegram  read:  "Water  is  getting  low.  Come  out,"  and  was 
sent  to  inform  plaintiff  of  danger  to  his  cattle  from  lack  of 
water.  It  was  alleged  that  if  the  message  had  been  delivered 
within  a  reasonable  time  he  could  have  gone  to  his  ranch  and 
made  arrangements  that  would  have  saved  him  from  heavy  losses. 
The  defendant's  agent  was  informed  of  the  danger  to  the  cattle. 
Plaintiff  left  home  at  10 :50  A.  M.  the  day  the  message  was  sent, 
but  his  wife  remained  at  home  in  the  town  all  day.  On  failing 
to  find  plaintiff  the  receiving  operator  telegraphed  the  sending 
operator  of  the  fact  and  was  instructed  to  deliver  the  message  to 
a  firm  of  merchants  in  the  town  where  plaintiff  lived. 

Brown,  A.  J.  (After  stating  the  facts,  and  ruling  on  ques- 
tions of  pleading  and  evidence.)  There  was  error  in  giving  the 
special  charge  mentioned  in  the  third  question.  The  general 
rule  is  expressed  by  Croswell  in  his  work  on  the  law  of  Elec- 
tricity, section  412,  thus :  ' '  The  leading  principle  as  to  delivery 
of  a  telegram  is,  that  the  message  is  to  be  delivered  to  the  person 
to  whom  it  is  addressed,  and  the  place  of  address  is  subordinate 
to  the  person;  and,  therefore,  if  the  person  cannot  be  found  at 

671 


§  175  OF  TELEGRAPH  COMPANIES. 

the  street  and  number  or  other  place  to  which  the  telegram  is 
addressed,  but  can  be  found  by  reasonable  efforts  of  the  tele- 
graph company  in  some  other  place,  it  may  be  negligence  for  the 
company  to  leave  the  telegram  at  the  place  of  address  without 
making  further  efforts  to  find  the  absent  person  and  make  per- 
sonal delivery":  Western  Union  Tel.  Co.  v.  Cooper,  71  Tex. 
507 ;  9  S.  W.  R.  598,  10  Am.  St.  R.  772 ;  Western  Union  Tel.  Co. 
v.  Houghton,  82  Tex.  561,  17  S.  W.  R.  846,  27  Am.  St.  R.  918 ; 
Tel.  Co.  V.  Newhouse,  6  Ind.  App.  422,  33  N.  E.  R.  800 ;  Pope  v. 
Telegraph  Co.,  9  Mo.  App.  283. 

If  a  message  be  addressed  to  the  care  of  another,  it  may  be 
delivered  to  such  person;  or  if  the  addressee  has  taken  rooms 
at  a  hotel,  where  it  is  the  custom  to  deliver  mail  and  such  mes- 
sages, it  will  be  presumed  that  the  clerk  is  the  agent  of  the  guest 
to  receive  messages  of  this  character,  and  a  delivery  to  such 
clerk  will  be  sufficient. 

The  wife,  as  such,  is  not  in  law  the  general  agent  of  her  hus- 
band, and  we  know  of  no  principle  of  law  that  would  justify 
the  conclusion  that  it  was  the  duty  of  the  defendant  to  deliver 
the  message  in  this  case  to  Mrs.  Mitchell,  nor  that  such  a  de- 
livery to  her  would  have  satisfied  the  obligation  of  the  tele- 
graph company  to  Mitchell. 

The  duty  which  the  telegraph  company  owes  to  the  addressee 
is  personal,  and  cannot  be  discharged  by  making  inquiry  for 
the  person  to  whose  care  the  message  may  be  sent,  nor  by  ap- 
plying to  the  place  of  business  or  residence  of  the  addressee,  but 
inquiry  must  be  made  for  the  person  addressed,  if  the  circum- 
stances are  such  as  to  show  that  he  may  probably  be  found  away 
from  such  place  of  business  or  residence.  The  place  to  which 
a  message  is  sent  is  but  a  guide  for  the  messenger,  and  does  not 
determine  the  measure  of  his  diligence.  Whether  the  messen- 
ger who  is  charged  with  the  delivery  of  a  telegram  and  fails  to 
present  it  at  the  residence  or  place  of  business  of  the  addressee 
has  used  ordinary  diligence  such  as  the  law  requires  is  a  question 
of  fact  for  the  jury;  and  it  was  error  for  the  court  in  effect  to 
charge  the  jury  as  a  matter  of  law  that  it  was  a  duty  of  the 
telegraph  company  to  deliver  the  message  to  the  plaintiff's  wife. 

Attorneys  for  appellee  cite  the  case  of  Given  v.  Western  Union 
Tel.  Co.,  24  Fed.  Rep.  119,  as  supporting  the  charge  of  the 
court  above  referred  to;  and  upon  a  careful  investigation  we 
have  found  Western  Union  Tel.  Co.  v.  Woods,  56  Kan,  737.  44 
Pac.  R.  989,'which  we  think  is  more  nearly  in  point.  The  former 
case  was  based  upon  substantially  the  following  facts :  A  mes- 
sage was  sent  to  the  plaintiff,  and  the  telegraph  company  in- 
quired at  his  place  of  business,  ascertaining  that  he  had  left  the 

672 


W.  U.  TELEGRAPH  CO.  v.  MITCHELL.    §§  175,  17 G 

city,  and  having  exhausted  all  means  of  delivering  the  message 
to  him  personally,  delivered  it  to  his  wife  and  notified  the 
sender  of  the  fact  of  such  delivery.  The  court  held  that  the 
telegraph  company  had  used  due  care  and  had  discharged  its 
duty  to  the  plaintiff,  but  did  not  hold  that  it  was  the  duty  of  the 
company  to  make  the  delivery  to  the  wife. 

In  the  case  of  the  Western  Union  Tel.  Co.  v.  Woods,  56  Kan. 
737,  44  Pac.  R.  989,  a  message  was  sent  to  the  plaintiff  in  the  case 
at  the  town  of  his  residence.  He  was  a  merchant,  and  his  store 
was  a  short  distance  from  the  telegraph  office,  where  his  wife 
was  in  charge  of  the  business,  and  he  had  a  clerk  employed  also. 
His  residence  was  also  near  by.  The  party  addressed  was  out  of 
the  town,  and  the  telegraph  company  failed  to  apply  at  his  place 
of  business  or  residence  for  information  or  for  the  purpose  of 
delivering  his  message.  The  court  held  as  follows :  ' '  Being  un- 
able to  make  a  personal  delivery  at  that  place,  it  was  the  duty 
of  the  company  to  deliver  it  to  his  wife  or  to  his  clerk  at  the 
store  or  to  members  of  his  family  at  his  residence.  If  delivery 
had  been  made  at  either  of  these  places,  the  agents  of  Woods 
would  have  had  time  and  opportunity  to  have  sent  a  message  to 
him  at  Grant  Summit,  and  thus  have  averted  the  loss  which  fol- 
lowed." It  will  be  observed  that  the  court  here  speaks  of  the 
persons  to  whom  the  delivery  should  have  been  made  as  the 
agents  of  the  party  addressed,  and  in  so  far  as  they  were  agents 
and  authorized  to  receive  the  message  this  is  a  correct  expres- 
sion of  the  law,  but  that  portion  which  announces  that  it  was 
the  duty  of  the  telegraph  company  to  deliver  to  members  of  the 
family  is  purely  dictum  and  without  any  support  whatever. 


176.     CENTRAL  UNION  TELEPHONE  CO.  V.  FALLEY, 

118  hid.  194;  20  N.  E.  E.  145;  10  Am.  St.  B.  114.     18S8. 

Mandamus,  to  compel  appellant  to  furnish  her  a  telephone  at 
her  place  of  business  with  telephonic  connections  and  facilities. 
The  Indiana  statutes  required  every  telephone  company  with 
wires  wholly  or  partly  in  the  state  and  doing  a  general  telephone 
business  to  furnish  telephone  service  and  connections  without 
discrimination  to  all  applicants  at  a  charge  not  in  excess  of  $3.00 
per  month.  Defendant  alleged  that  it  had  gone  out  of  the  gen- 
eral rental  business,  offering  a  public  toll  service  instead. 

Olds,  J.  ...  In  determining  this  case,  it  is  important  to  consider 
the  nature  of  the  telephone,  how  operated,  tlie  utility  of  it,  and 
43  673 


§  176  OF  TELEPHONE  COMPANIES. 

the  rights  of  the  parties  in  the  absence  of  the  statutes  enacted 
by  the  legislature.  The  telephone  differs  from  the  telegraph 
very  materially,  in  this,  that  the  transmission  of  news,-  the  send- 
ing and  receiving  of  messages  by  telegraph,  can  only  be  done 
by  those  having  a  knowledge  of  the  business,  and  having  a 
knowledge  of  the  art  and  science  of  telegraphy.  To  others  who 
are  not  telegraphists,  the  telegraph  would  be  useless.  It  is, 
therefore,  only  beneficial  to  the  general  public  when  operated 
by  persons  or  companies  keeping  in  their  employ  telegraphists 
to  send,  receive,  and  transmit  messages,  and  messengers  to  de- 
liver them  to  persons  to  whom  addressed.  A  telegraphic  instru- 
ment in  the  house  or  place  of  business  of  a  patron  of  the  com- 
pany, connected  with  the  wires  of  the  company,  with  facilities 
for  transmitting  and  receiving  messages  by  telegraph,  would  be 
of  no  use  to  a  patron  unless  he  was  learned  in  the  art  of 
telegraphy.  But  the  telephone  is  entirely  different ;  a  telephone, 
with  proper  connections  and  facilities  for  use,  can  be  used  by 
any  person;  it  requires  no  experience  to  operate  it.  Webster 
defines  it  as  "an  instrument  for  conveying  sound  to  a  great  dis- 
tance." 

In  the  case  of  the  Central  Union  Telephone  Co.  v.  Bradbury, 
106  Ind.  1,  5  N.  E.  R.  721,  the  word  "telephone,"  as  used  in  the 
act  of  April  13,  1885,  was  held  to  mean  '  *  an  organized  apparatus 
or  combination  of  instruments  usually  in  use  in  transmitting 
as  well  as  in  receiving  telephonic  messages. ' '  By  the  use  of  the  tel- 
ephone, persons  are  enabled  to  converse  with  each  other  while 
in  their  respective  business  houses  or  residences  a  great  distance 
apart.  Although  of  recent  date,  it  has  become  of  important  use 
in  the  transaction  of  business,  and  there  is  no  other  invention  or 
device  to  supply  its  place.  While  it  may  not  supply  and  take 
the  place  of  the  telegraph  in  many  instances  and  for  many  pur- 
poses, yet  in  others  it  far  surpassess  it,  and  is  and  can  be  put 
to  many  uses  for  which  the  telegraph  is  unfitted,  and  by  persons 
wholly  unable  to  operate  and  use  the  telegraph.  It  has  been 
held  universally  by  the  courts,  considering  its  use  and  purpose, 
to  be  an  instrument  of  commerce  and  a  common  carrier  of  news, 
the  same  as  the  telegraph,  and  by  reason  of  being  a  common  car- 
rier, it  is  subject  to  proper  obligations,  and  to  conduct  its  busi- 
ness in  a  manner  conducive  to  the  public  benefit,  and  to  be 
controlled  by  law.  To  conduct  the  business  of  the  telephone  by 
public  telephone  stations  and  by  sending  messengers  to  notify 
persons  with  whom  a  patron  of  the  company  desires  to  converse 
in  other  parts  of  the  city,  to  compel  the  person  desiring  to  con- 
verse with  others  to  remain  at  the  public  telephone  station  until 
the  persons  with  whom  they  desire  to  converse  can  be  notified 

674 


CEN.  UNION  TELEPHONE  CO.  v.  FALLEY.  §  176 

and  so  arrange  their  business  as  to  leave  and  go  to  another  tele- 
phone station  and  hold  the  conversation,  renders  the  use  of  the 
telephone  almost  worthless.  It  is  by  reason  of  the  fact  that 
business  men  can  have  them  in  their  offices  and  residences,  and, 
without  leaving  their  homes  or  their  places  of  business,  call  up 
another  at  a  great  distance  with  whom  they  have  important 
business,  and  converse  without  the  loss  of  valuable  time  on  the 
part  of  either,  that  the  telephone  is  particularly  valuable  as  an 
instrument  of  commerce.  It  being  an  instrument  of  commerce, 
and  persons  or  corporations  engaged  in  the  general  telephone 
business  being  connnon  carriers  of  news,  what  are  the  rights  of 
the  public,  independent  of  the  statute,  as  regards  discrimina- 
tion? 

Any  person  or  corporation  engaged  in  telephone  business,  op- 
erating telephone  lines,  furnishing  telephonic  connections,  facili- 
ties, and  service  to  business  houses,  persons,  and  companies, 
and  discriminating  against  any  person  or  company,  can  be 
compelled  by  mandate,  on  the  petition  of  such  person  or  com- 
pany discriminated  against,  to  furnish  to  the  petitioner  a  like 
service  as  furnished  to  others.  This  has  been  held  in  the  case  of 
State  V.  Nebraska  Telephone  Co.,  17  Neb.  126,  52  Am.  R.  404; 
Vincent  v.  Chicago  etc.  R.  R.  Co.,  49  111.  33;  People  v.  Man- 
hattan Gas  Light  Co.,  45  Barb.  136.  And  the  principle  held  in 
these  cases  is  in  accordance  with  the  well-settled  rules  governing 
common  carriers. 

It  is  not  controverted  in  the  argument  by  counsel  for  the 
appellant  that  the  legislature  had  the  right  to  regulate  the  price 
to  be  charged  and  collected  for  the  use  of  telephones  and  tele- 
phonic connections,  facilities,  and  service;  and  even  if  it  were 
controverted,  it  is  well  settled  by  authorities  that  the  legislature 
has  the  right  to  do  so,  relative  to  the  business  conducted  within 
the  state :  Hockett  v.  State,  105  Ind.  250,  5  N.  E.  R.  178,  55  Am. 
R.  201 ;  Central  Union  Telephone  Co.  v.  Bradbury,  supra,  and 
authorities  cited  in  those  cases;  Johnson  v.  State,  113  Ind.  143, 
15  N.  E.  R.  215 ;  Munn  v.  Illinois,  94  U.  S.  113 ;  Ouachita  Packet 
Co.  V.  Aiken,  121  U.  S.  444,  7  S.  Ct.  R.  907 ;  Patterson  v.  Ken- 
tuclrr,  97  Id.  501. 

The  telephone  company  being  liable  for  discriminating  be- 
tween persons  and  companies,  and  the  person  or  company  dis- 
criminated against  having  a  remedy  without  the  enactment  of 
section  2  of  the  act  of  April  8,  1885,  there  was  no  occasion  for  the 
statute  on  that  account  alone.  Then  what  was  the  purpose  and 
object  of  the  two  statutes  set  out? 

It  should  be  presumed  the  legislature  had  some  purpose  and' 
object.    If  section  2  of  the  act  of  April  8th  was  only  to  prevent 

675 


§  176  OF  TELEPHONE  COMPANIES. 

discrimination,  and  section  1  of  the  act  of  April  13th  only  to  fix 
the  price  for  the  rental  of  telephones  when  the  telegraph  com- 
pany was  operating  under  a  rental  system,  then  all  that  the 
companies  operating  telephone  lines  would  have  to  do  would  be 
to  cease  to  operate  their  business  under  a  rental  system,  and 
charge  so  much  for  each  conversation,  or,  as  they  have  done  in 
this  case,  establish  public  telephone  stations,  and  then  charge  for 
each  separate  use  of  the  telephone,  and  they  might  thereby  derive 
a  greater  income  for  the  use  of  the  telephone,  and  render  to  the 
public  much  inferior  service,  and  yet  avoid  lialiility  under  the 
statute.  We  do  not  think  such  was  the  object  or  purpose  of  the 
statute,  or  that  such  construction  can  be  placed  upon  it. 

It  was  the  evident  intention  of  the  legislature  that  where  a 
telephone  company  was  doing  a  general  telephone  business  in 
this  state,  any  person  within  the  local  limits  of  its  business  in 
a  town  or  city  should  have  the  right  to  demand  and  receive  a 
telephone  and  telephonic  connections,  facilities,  and  service,  the 
best  in  use  by  such  company,  and  should  only  be  liable  to  be 
charged  and  to  pay  three  dollars  per  month  therefor.  With 
this  construction  only  are  the  statutes  of  any  benefit  to  the  citi- 
zens of  the  state.  The  legislature  fixed  what,  in  the  judgment 
of  that  body,  was  the  maximum  price  that  should  be  charged 
for  the  service,  and  placed  it  in  the  power  of  each  individual 
and  gave  him  the  right  to  demand  and  receive  such  service 
within  the  limits  of  the  company's  business,  in  any  town  or  city 
where  such  company  is  doing  a  general  telephone  business. 

It  is  insisted,  as  it  appears  by  the  answer  that  the  lines  of 
the  appellant  extended  through  the  states  of  Ohio,  Indiana, 
and  Illinois,  that  appellant  was  engaged  in  interstate  com- 
merce: that  it  was  a  common  carrier  of  news  between  the 
states,  and  that  therefore  such  statutes  are  an  interference 
with  interstate  commerce.  We  cannot  agree  with  that  theory. 
These  statutes  simply  provide  that  telephone  companies  shall 
provide  persons  within  this  state  with  certain  service,  and  for 
such  service  shall  receive  a  certain  compensation.  They  only 
seek  to  control  the  service  within  this  state.  If  section  2  of 
the  act  of  April  13th,  providing  for  the  price  to  be  paid  for  con- 
nections between  two  cities  or  villages,  should  be  construed  to 
apply  to  two  cities  or  villages  one  of  which  was  without  this  state, 
then  there  would  be  some  question  as  to  the  validity  of  that  sec- 
tion, or  the  power  of  the  legislature  to  control  the  price  to  be 
paid  for  a  message  or  the  use  of  the  telephone  for  communica- 
ting with  a  person  beyond  the  limits  of  the  state;  but  that  ques- 
tion is  not  involved  in  this  case,  as  one  section  of  a  statute  may  be 
valid  and  another  not.     Telegraph  companies  stand  upon  a  dif- 

676 


GEN.  UNION  TELEPHONE  CO.  v.  FALLEY.  §  176 

ferent  footing,  in  some  respects,  from  that  of  telephone  com- 
panies; they  have  been  granted  some  rights  and  privileges  by 
acts  of  Congress  which  cannot  be  abridged  or  interfered  with. 
In  the  case  of  Western  Union  Tel.  Co.  v.  Pendleton,  122  U.  S. 
347,  7  S.  Ct.  R.  1126,  referred  to  by  counsel  for  appellant,  it  was 
held  that  the  act  was  void  in  so  far  as  it  sought  to  govern  the 
delivery  of  messages  outside  of  the  state :  State  v.  Newton,  59 
Ind.  173. 

It  is  also  contended  by  counsel  for  appellant  that  as  the 
statute  provides  a  remedy  other  than  that  by  mandate  for  a  vio- 
lation of  the  statute,  the  w^rit  of  mandate  is  not  a  proper  remedy. 

The  right  to  have  the  telephone  and  telephonic  connections 
and  facilities  is  a  right  given  by  the  statutes.  It  is  a  legal  right, 
which  may  be  enforced  by  mandate.  No  remedy  is  adequate 
which  does  not  give  the  person  that  to  which  he  is  entitled  by 
law ;  the  penalty  of  one  hundred  dollars  is  cumulative,  and  does 
not  abridge  or  take  away  the  right  to  a  writ  of  mandate.  The 
statute  itself  provides  that  the  act  shall  not  be  so  construed  as  to 
''abridge  the  right  of  such  aggrieved  party  to  appeal  to  a  court 
of  equity  to  prevent  such  violations  or  discriminations,  by  in- 
junction or  otherwise."  The  statutes  should  be  so  construed 
as  that  the  penalty  shall  not  take  away  any  of  the  other  remedies 
the  aggrieved  person  may  have,  one  of  which  remedies  is  by 
writ  of  mandate.  This  court  held,  in  the  case  of  Central  Union 
Tel.  Co.  V.  Bradbury,  supra,  that  Bradbury  was  entitled  to  his 
remedy  by  writ  of  mandate  compelling  the  company  to  furnish 
him  with  a  telephone  and  telephonic  service.  The  right  to  a 
writ  of  mandate  requiring  telephone  companies  to  furnish  tele- 
phonic service  to  persons  entitled  thereto  has  been  held  in  State 
V.  Telephone  Co.,  36  Ohio  St.  296,  38  Am.  E.  583 ;  also  by  the 
supreme  court  of  Pennsylvania,  in  Bell  Telephone  Co.  v.  Com- 
monwealth, Sup.  Ct.  Penn.,  Apr.  19,  1886,  59  Am.  R.  172.  In 
this  case  the  complaint  states  a  good  cause  of  action  under  the 
statutes. 

The  second  paragraph  of  the  answer  alleges  the  conducting 
of  the  defendant's  business  in  the  several  states,  and  that  it  is 
engaged  in  interstate  commerce,  and  that  to  furnish  relatrix  with 
an  instrument  and  connection  with  its  lines  would  put  her  in 
connection  with  its  offices  outside  of  the  state,  and  furnish  her 
facilities  for  transmitting  messages  from  Lafayette  to  various 
places  in  Ohio  and  Illinois,  where  the  appellant  has  its  wires 
and  offices.  This  paragraph  does  not  controvert  the  facts  alleged 
in  the  complaint,  that  appellant,  at  the  time  of  the  acts  and 
things  complained  of,  etc.,  was  owning  and  operating  a  system 
of  telephone  lines  and  wires,  and  engaged  in  doing  a  general 

677 


§  176  OF  TELEPHONE  COMPANIES. 

teleplioiiG  business  in  the  city  of  Lafayette,  and  that  the  place 
of  business  of  the  relatrix  is  within  the  limits  of  the  appellant's 
telephone  business  in  said  city;  and  it  must  also  be  remembered 
that  tlie  demand,  as  alleged  in  the  complaint,  was  only  that  she 
be  furnished  with  a  telephone  and  telephonic  connections  and 
facilities  necessary  to  place  her,  at  her  said  store,  in  telephonic 
communication  with  patrons  of  appellant  in  said  city.  The 
statutes  contemplate  two  kinds  of  service,  and  different  compen- 
sations for  each;  one,  connections  and  facilities  for  conversing 
with  patrons  of  the  company  within  any  city  or  town  where  an 
exchange  is  maintained;  the  other,  for  conversing  between  two 
towns  or  cities. 

The  other  paragraphs  show  the  appellant  to  have  been  engaged 
in  a  general  telephone  business  in  said  city,  operating  the  same 
under  a  toll  system  at  the  time  of  the  demand  and  tender  by 
relatrix,  and  do  not  controvert  the  allegations  in  complaint  that 
the  plaintiff's  place  of  business  is  within  the  local  limits  of  ap- 
pellant's business  in  said  city.  Neither  of  the  paragraphs  of 
answer  is  sufficient. 

Under  the  construction  we  have  given  the  statutes,  there  was 
no  error  committed  by  the  court  below  in  overruling  the  de- 
murrer to  the  complaint,  sustaining  the  demurrers  to  the  answers, 
or  in  granting  the  writ  of  mandate. 

The  judgment  is  affirmed,  with  costs. 


678 


PAET  V 
OF  ACTIONS  AGAINST  CARKIERS 


CHAPTER  XVI. 

THE  ACTION  AND  THE  DAMAGES. 

177.     FINN  V.  WESTERN  RAILROAD  CORPORATION, 

112  Mass.  524;  17  Am.  B.  128.     1873. 

Action  on  contract  for  shipment  of  shingles.  No  consignee  was 
named  in  the  bill  of  lading,  but  evidence  was  introduced  to  show 
that  one  bunch  in  six  or  eight  of  the  shingles  was  plainly  marked 
"J.  S.  Clark,  Southampton,  Mass."  Shipment  was  by  Erie 
Canal  to  Greenbush,  thence  by  defendants'  railroad  to  destina- 
tion. Defendants'  agents  at  Greenbush  wrote  plaintiff  that 
there  was  no  consignee  named  in  the  bill  of  lading,  and  plaintiff 
mailed  a  letter  giving  direction.  This  the  agent  testified  he  did 
not  receive.  The  shingles  were  burned  in  defendants'  warehouse. 
Plaintiff  had  meantime  drawn  on  Clark  for  the  price  and  the 
draft  had  been  paid.  The  jury  found  that  defendants'  agent  did 
see  the  full  address  of  the  consignee  on  the  bunches  of  shingles. 
Verdict  for  plaintiff.    Exceptions  by  defendant. 

Wells,  J.  The  only  question  argued  by  the  defendant,  upon 
these  exceptions,  is  whether  the  action  for  loss  of  the  property 
can  be  maintained  by  and  in  behalf  of  Finn.  It  is  contended 
that  if  there  was  a  delivery,  with  proper  directions  for  the  trans- 
portation, so  as  to  charge  the  defendant  with  responsibility  as 
carrier,  then  the  title  to  the  property  had  passed  to  Clark,  the 
consignee;  and  the  right  of  action  for  injury  to  it  was  in  him 
alone.  On  the  other  hand,  if  proper  directions  for  its  transpor- 
tation had  not  been  given,  then  the  defendant  is  not  liable  at 
all  as  carrier,  according  to  the  former  decision  in  102  Mass.  283. 
It  is  not  contended  that  the  defendant  is  liable  as  warehouseman. 
In  either  aspect  of  the  case,  upon  this  view  of  the  law,  no  re- 
covery could  be  had  by  Finn. 

679 


§  177  ACTIONS  AGAINST  CARRIEES  OF  GOODS. 

The  jury  having  found  that  the  defendant  became  responsible 
as  carrier,  the  case  is  now  presented  only  in  that  aspect.  We 
think  also  that  the  facts,  as  disclosed  by  the  present  bill  of  ex- 
ceptions, show  that  the  title  to  the  property  had  passed  to  Clark 
before  the  loss  occurred;  leaving  in  Finn  at  most  only  a  right  of 
stoppage  in  transitu. 

The  liabilities  of  a  common  carrier  of  goods  are  various ;  and, 
when  not  controlled  by  express  contract,  they  spring  from  his 
legal  obligations,  according  to  the  relations  he  may  sustain  to 
the  parties,  either  as  employers,  or  as  owners  of  the  property. 
Prima  facie,  his  contract  of  service  is  with  the  party  from 
whom,  directly  or  indirectly,  he  receives  the  goods  for  carriage ; 
that  is,  with  the  consignor.  His  obligation  to  carry  safely,  and 
deliver  to  the  consignees,  subjects  him  to  liabilities  for  any  fail- 
ure therein,  vv'hich  may  be  enforced  by  the  consignees,  or  by  the 
real  owners  of  the  property,  by  appropriate  actions  in  their  own 
names,  independently  of  the  original  contract  by  which  the  ser- 
vice was  undertaken.  Such  remedies  are  not  exclusive  of  the 
right  of  the  party  sending  the  goods,  to  have  his  action  upon  the 
contract  implied  from  the  delivery  and  receipt  of  them  for  car- 
riage. This,  in  effect,  we  understand  to  be  the  result  of  the 
elaborate  discussion  of  the  principles  applicable  to  the  case  in 
Blanchard  v.  Page,  8  Gray,  281.  That  decision  may  not  be  pre- 
cisely in  point,  as  an  adjudication,  to  govern  the  case  now  before 
us ;  for  the  reason  that  there  was  a  written  receipt  or  bill  of  lad- 
ing for  carriage  by  water,  and  the  plaintiffs  were  acting  in  the 
transaction  as  agents  for  the  owners  of  the  goods;  yet  the  gen- 
eral principles  evolved  do  apply,  and  are  satisfactory  to  us  for 
the  determination  of  the  present  case. 

When  carrying  goods  from  seller  to  purchaser,  if  there  is  noth- 
ing in  the  relations  of  the  several  parties  except  what  arises  from 
the  fact  that  the  seller  commits  the  goods  to  the  carrier  as  the 
ordinary  and  convenient  mode  of  transmission  and  delivery, 
in  execution  of  the  order  or  agreement  of  sale,  the  employment  is 
by  the  seller,  the  contract  of  service  is  with  him,  and  actions 
based  upon  that  contract  may,  if  they  must  not  necessarily  be, 
in  the  name  of  the  consignor.  If,  however,  the  purchaser  desig- 
nates the  carrier,  making  him  his  agent  to  receive  and  transmit 
the  goods;  or  if  the  sale  is  complete  before  delivery  to  the  car- 
rier, and  the  seller  is  made  the  agent  of  the  purchaser  in  re- 
spect to  the  forwarding  of  them,  a  different  implication  would 
arise,  and  the  contract  of  service  might  be  held  to  be  with  the 
purchaser.  This  distinction,  we  think,  must  determine  whether 
the  right  of  action  upon  the  contract  of  service,  implied  from 
the  delivery  and  receipt  of  goods  for  carriage,  is  in  the  consignor 

680 


FINN  V.  WESTEKN  K.  K.  COKPOKATION.  §  177 

or  in  the  consignee.  In  the  case  of  Blanchard  v.  Page  the  action 
was  maintained  in  the  name  of  the  consignors,  who  were  merely 
the  agents  of  the  owners  in  forwarding  the  goods.  But  that  was 
explicitly  on  the  ground  of  the  express  contract  with  them,  em- 
bodied in  the  receipt  or  bill  of  lading. 

As  already  suggested,  the  consignee,  by  virtue  of  his  right  of 
possession,  or  the  purchaser,  by  virtue  of  his  right  of  property, 
may  have  an  action  against  the  carrier  for  the  loss,  injury  or 
detention  of  the  goods,  though  not  party  to  the  original  contract. 
Such  action  is  in  tort  for  the  injury  resulting  from  a  breach  of 
duty  imposed  by  law  upon  the  carrier ;  or,  in  the  language  of  the 
early  cases,  upon  ' '  the  custom  of  the  realm. ' ' 

There  are  many  cases,  both  in  England  and  in  the  United 
States,  in  which  the  doctrine  appears  to  be  maintained  that,  ex- 
cept when  there  is  a  special  contract,  a  remedy  for  injury  result- 
ing from  breach  of  duty  by  a  carrier,  can  be  had  only  in  the 
name  and  behalf  of  some  one  having  an  interest  in  the  property 
at  the  time  of  the  breach,  which  is  injuriously  affected  thereby. 

The  rule  might  well  be  conceded,  if  the  exception  were  not  too 
restricted.  It  will  hold  good  in  actions  of  tort,  because  they  are 
founded  upon  injury  to  some  interest  or  right  of  the  plaintiff. 
And  the  cases  which  support  this  view  are  mostly,  if  not  alto- 
gether, actions  of  tort.  This  is  true  of  the  leading  early  case 
from  which  the  doctrine  is  mainly  derived:  Dawes  v.  Peck,  8 
T.  R.  330;  also  of  Griffith  v.  Ingledew,  6  S.  &  R.  (Pa.)  429,  9  Am. 
D.  444 ;  Green  v.  Clark,  5  Denio,  497,  13  Barb.  57,  and  2  Ker- 
nan,  343;  and  does  not  appear  from  the  report  to  be  otherwise 
in  Krulder  v.  Ellison,  47  N.  Y.  36,  7  Am.  R.  402.  In  discussing 
the  grounds  of  decision  it  seems  to  have  been  assumed  by  various 
judges,  as  we  think  erroneously,  that  the  right  of  recovery  neces- 
sarily involved  the  question  with  whom  the  original  contract  of 
service  was  made.  And  the  effort  to  make  the  inference  of  law 
as  to  that  contract  conform  to  what  was  deemed  the  proper  de- 
cision as  to  the  right  to  recover  for  the  injury,  has  led  to  some 
statements  of  legal  inference  which  appear  to  us  to  be  somewhat 
overstrained.  Thus  in  Dawes  v.  Peck,  it  is  said  by  Lawkence, 
J.,  that,  in  the  payment  of  freight  by  the  consignor,  he  is  to  be 
regarded  as  the  agent  of  the  consignee;  that  the  carrier  gen- 
erally knows  nothing  of  the  consignor,  but  looks  to  the  person 
to  whom  the  goods  are  directed.  In  Freeman  v.  Birch,  1  Nev. 
&  Man.  420,  it  is  said  by  Parke,  J.,  "In  ordinary  cases  the 
vendor  employs  the  carrier  as  the  agent  of  the  vendee."  In 
Green  v.  Clark,  13  Barb.  57,  it  is  said  by  Allen,  J.,  that  when 
the  consignee  is  the  legal  owner,  or  the  property  vests  in  him  by 
the  delivery  to  the  carrier,  "it  is  an  inference  of  law,  and  not 

681 


§  177  ACTIONS  AGAINST  CAKRIEES  OF  GOODS. 

a  presumption  of  fact,  that  the  contract  for  the  safe  carriage 
is  between  the  carrier  and  consignee,  and  consequently  the  latter 
has  the  legal  right  of  action."  But  in  the  same  case  in  the 
Court  of  Appeals,  2  Kernan,  343,  it  was  regarded  as  immaterial 
by  whom  the  contract  was  made,  and  whether  the  plaintiff  was 
consignor  or  consignee,  for  the  purposes  of  an  action  of  case  for 
negligence  by  which  his  property  was  injured. 

In  Griffith  v,  Ingledew,  the  dissenting  opinion  of  Gibson,  J., 
assuming  that  the  contract  of  carriage  formed  the  basis  of  the 
action,  combats  with  great  force  of  reasoning  the  proposition 
that  a  contract  with  the  consignee  is  the  legal  result  of  the  re- 
ceipt of  goods  by  a  carrier,  when  no  privity  with,  or  authority 
from,  the  consignee  is  shown,  and  none  professed  by  the  con- 
signor at  the  time,  unless  the  direction  of  the  goods  to  the  ad- 
dress of  the  consignee  can  be  taken  to  be  such  profession. 

The  whole  force  and  effect  of  the  reasoning  in  Blanchard  v. 
Page  is  in  the  same  direction.  The  ordinary  bill  of  lading  or 
receipt,  given  to  the  consignor  by  the  carrier,  simply  expresses 
what  is  the  real  significance  of  the  transaction  independent  of 
the  writing.  There  is  no  reason  for  giving  a  different  interpreta- 
tion to,  or  drawing  a  different  inference  from,  the  acts  of  parties, 
because  of  a  writing  which  is  nothing  but  a  voucher  taken  to  pre- 
serve the  evidence  of  those  acts. 

"Whatever  remedy  is  sought  in  contract  must  necessarily  be 
sought  in  the  name  of  the  party  with  whom  the  contract  is  en- 
tered into,  whether  it  be  special,  that  is,  express  or  implied.  The 
question  then  is  simply  this :  In  the  absence  of  an  express  agree- 
ment, with  whom  is  the  carrier's  contract  of  employment  and 
service  in  respect  of  goods  delivered  to  him  by  the  seller  to  con- 
vey to  the  purchaser,  when  there  is  no  privity  or  relation  of 
agency  between  the  carrier  and  the  purchaser  save  that  which 
springs  from  possession  of  the  goods,  and  the  seller  has  no  au- 
thority to  make  a  contract  for  the  purchaser  except  what  is  to 
be  implied  from  the  agreement  of  purchase  or  the  order  for 
the  goods? 

The  law  imposes  upon  the  carrier  the  duty  to  transport  the 
goods,  allows  him  a  reasonable  compensation,  and  gives  him  a  lien 
upon  the  goods  for  security  of  its  payment.  It  also  implies  a 
promise  on  the  one  part  to  carry  and  deliver  the  goods  safely, 
and  on  the  other,  to  pay  the  reasonable  compensation.  These 
two  promises  form  the  contract.  Each  is  the  counterpart  and 
the  consideration  of  the  other.  If  the  contract  of  carriage  is 
with  the  consignee,  the  reciprocal  promise  to  pay  the  freight 
must  be  his  also.  Against  this  inference  are  the  considerations 
that  the  seller  is  acting  in  his  own  behalf  in  making  the  delivery, 

682 


FINN  V.  WESTERN  R.  R.  CORPORATION.  §  177 

and  the  goods  remain  his  property  until  the  contract  with  the 
carrier  takes  effect.  The  title  of  the  purchaser  does  not  exist 
until  that  contract  is  made.  It  follows  as  a  result.  The  carrier 
is  not  agent  for  either  party,  but  an  intermediate,  independent 
principal.  If  made  an  agent  of  the  consignee,  his  receipt  of 
the  goods  cuts  off  the  right  of  stoppage  in  transitu  on  the  one 
hand,  and  satisfies  the  statute  of  frauds  on  the  other.  He  has  a 
right  to  look  for  his  compensation  to  the  party  who  employs 
him,  unless  satisfied  from  his  lien.  The  fact  that,  as  between 
seller  and  purchaser,  the  purchaser  must  ordinarily  pay  the 
expenses  of  transportation  as  a  part  of  the  cost  of  the  goods, 
does  not  affect  the  relations  of  contract  between  the  carrier  and 
either  party.  We  discover  nothing  in  the  nature  of  the  trans- 
action, and  we  doubt  if  there  is  any  thing  in  the  practice  or  un- 
derstanding of  the  community,  which  will  justify  the  inference 
that  one  to  whom  goods  are  sent  by  carrier,  without  direction 
or  authority  from  him,  other  than  an  agreement  of  purchase  or 
consignment,  is  the  party  who  employed  the  carrier  and  is  bound 
to  pay  him;  unless  he  assumes  such  liability  by  receiving  the 
goods  subject  to  the  charge. 

The  contract  is  made  when  the  goods  are  received  by  the  car- 
rier. If  it  is  then  the  contract  of  the  consignee,  it  will  not  cease 
to  be  so,  and  become  the  contract  of  the  consignor,  by  reason  of 
subsequent  events.  Suppose,  then,  the  seller  exercises  his  right 
of  stoppage  in  transitu.  Is  the  purchaser  still  liable  to  the  car- 
rier for  the  unpaid  freight  ?  Suppose  the  contract  of  sale  to  be 
without  writing  and  within  the  statute  of  frauds.  The  contract 
of  the  carrier  is  not  within  the  statute,  and  the  authority  to  the 
seller  to  make  such  contract  in  behalf  of  the  purchaser  need  not 
be  in  writing.  Is  the  carrier  to  look  to  the  purchaser  or  to  the 
seller  for  the  freight  ?  Or  does  it  depend  upon  the  contingency 
whether  the  contract  of  sale  is  affirmed  or  avoided  ?  And  if  af- 
firmed, and  the  carrier  should  deliver  the  goods  without  insist^ 
ing  on  his  lien,  of  whom  must  he  collect  it?  The  authorities 
hold,  when  the  agreement  of  sale  is  within  the  statute  of  frauds, 
that  the  contract  of  the  carrier  is  with  the  consignor.  Coombsr 
V.  Bristol  &  Exeter  Railway  Co.,  3  H.  &  N.  510;  Coats  v.  Chap- 
lin, 3  Q.  B.  483. 

We  do  not  think  the  carrier's  contract  and  right  to  recover  hits 
freight  can  be  made  to  depend  upon  what  may  prove  to  be  the 
legal  effect  of  the  negotiations  between  consignor  and  consignee 
upon  the  title  to  the  property  which  is  the  subject  of  transporta- 
tion. His  contract  must  arise  from  the  circumstances  of  his  eni' 
ployment.  He  has  a  right  to  look  for  his  compensation  to  the 
party  who  required  him  to  perform  the  service  by  causikig  the 

683 


§§  177,178     ACTIONS  AGAINST  CAEKIERS  OF  GOODS. 

goods  to  be  delivered  to  him  for  transportation.  And  that  party, 
unless  he  is  the  mere  agent  of  some  other,  may  enforce  the  con- 
tract, and  sue  for  its  breach  by  the  carrier. 

One  who  forwards  goods,  in  execution  of  an  order  or  agree- 
ment, for  sale  is  not  a  mere  agent  of  the  purchaser  in  so  doing. 
He  is  acting  in  his  own  interest  and  behalf,  and  his  dealings 
with  the  carrier  are  in  his  own  right  and  upon  his  own  respon- 
sibility, unless  he  has  some  special  authority  or  direction  from 
the  purchaser,  upon  which  he  acts. 

The  plaintiff  in  this  case  is,  therefore,  entitled  to  maintain 
his  action  upon  the  contract ;  and  we  think  there  is  no  sufficient 
reason  shown  to  prevent  his  recovering  the  full  value  of  the 
property  destroyed.  If  Clark  was  the  owner  at  the  time,  and  his 
interest  has  been  in  no  way  satisfied  or  discharged,  the  plaintiff 
will  hold  the  proceeds  recovered  in  trust  for  his  indemnity.  Clark 
might  have  prosecuted  an  action  of  tort  in  his  own  name;  and 
recovered  the -value  of  his  property  lost;  in  which  event  the  dam- 
ages in  Finn's  suit  would  have  been  nominal,  or  reduced  to 
whatever  amount  of  actual  loss  he  suffered.  But  it  is  not  pre- 
tended that  Clark  has  ever  brought  any  suit  or  made  any  claim 
upon  the  defendant,  although  knowing  of  the  pendency  of  this 
suit,  and  having  testified  as  a  witness  in  the  same ;  and  all  claim 
by  him  is  long  since  barred.  It  is  to  be  presumed  that  he 
acquiesces  in  the  recovery  by  Finn.  If  there  were  any  doubt 
upon  this  point,  we  might  order  a  new  trial  upon  the  question 
of  damages  only.  As  there  is  none,  the  judgment  must  be  upon 
the  verdict. 

Exceptions  overruled. 


178.     SAVANNAH,  FLORIDA  AND  WESTERN  RAILWAY 
CO.  V.  PRITCHARD,  MATTHEWS  AND  CO., 

77  Ga.  412;  1  8.  E.  R.  261;  4  Am.  St.  R.  92.    1887. 

Action  for  damages  due  to  delay  by  defendant  railway  in 
carrying.    Judgment  for  plaintiffs. 

Hall,  J.  The  plaintiffs,  who  were  engaged  in  gathering  crude 
turpentine  and  manufacturing  it  into  spirit  and  rosin,  brought 
suit  against  the  Savannah,  Florida  and  Western  Railway  Com- 
pany for  failing  to  deliver  to  them  the  worm  of  a  turpentine- 
still  which  they  had  shipped  by  their  road  from  Savannah  to 
Lumber  City,  on  the  East  Tennessee,  Virginia,  and  Georgia 
Railroad.    It  seems  from  the  evidence  that  the  worm  was  carried 

684 


S.,  F.  &  W.  EY.  CO.  V.  PEITCHAEB,  ETC.,  &  CO.  §  178 

to  Cochran,  on  the  latter  railroad,  where  it  was  delivered  in 
the  depot,  and  from  there  it  was  carried  to  the  distillery  of 
another  party,  some  eight  miles  into  the  country.  After  va- 
rious efforts  to  trace  the  missing  worm,  and  considerable  ex- 
pense incurred  to  find  it,  it  was  at  length  reclaimed  by  its 
owners  from  the  party  to  whom  it  had  been  delivered,  six  weeks 
having  elapsed  between  the  time  it  should  have  been  received  at 
Lumber  City  and  when  it  was  actually  received  and  put  to  use 
by  the  plaintiffs.  During  all  that  time  their  machinery,  and 
hands  employed  in  running  it,  were  idle,  and  the  tree-boxes, 
from  which  the  crude  gum  was  gathered,  had  run  over,  and 
much  of  it  was  wasted  for  the  want  of  barrels  in  which  to  deposit 
it;  and  such  loss  would  not  have  occurred  had  the  worm  come 
to  hand  at  the  proper  time,  and  the  plaintiffs  been  enabled  to 
use  their  still.  The  principal  loss  was  in  the  crude  turpentine, 
estimated  at  eighty-six  barrels,  the  value  of  which  was  four  dol- 
lars a  barrel.  Plaintiffs  had  a  verdict  for  $564.70,  which  was 
the  amount  of  the  entire  damages  proved,  less  $16.  Defendant 
made  a  motion  for  new  trial,  which  was  overruled,  and  the  de- 
fendant excepted. 

(After  stating  the  defendants'  exceptions  to  the  verdict  and 
the  charges  of  the  court  below.) 

There  are  two  questions,  and  only  two,  made  by  this  record : — 

1.  The  first  is  as  to  the  liability  of  the  defendant  for  the  delay 
in  delivering  the  still-worm,  which  occurred  on  the,  connecting 
road  at  the  point  to  which  it  was  consigned,  and  to  which  the 
defendant  had  contracted  to  carry  and  deliver  it.  Of  its  legal 
liability  for  this  default,  we  think,  under  the  decisions  of  this 
court,  there  can  be  no  doubt :  See  Central  R.  R.  v.  Dwight  Mfg. 
Co.,  75  Ga.  609 ;  Falvey  v.  Georgia  R.  R.,  76  Id.  597.  _ 

2.  The  material  question  in  the  case,  however,  is,  whether 
the  court  gave  the  jury  the  correct  rule  as  to  the  measure  of 
damages,  especially  in  the  charge  as  to  the  item  of  loss  of  the 
crude  turpentine.  That  loss,  as  we  think,  was  the  natural  and 
legal  result  of  the  defendant's  negligence.  The  claim  on  that 
account  did  not  rest  upon  expected  profits,  but  the  loss  of  the 
material  from  the  manufacture  of  which  it  was  expected  profits 
would  be  derived.  These  questions  were  fairly  submitted  to 
the  jury,  and  there  was  evidence  under  the  repeated  ruling  of 
this  court  and  other  courts  which  justified  their  finding  in  this 
respect :  Hadley  v.  Baxendale,  9  Ex.  341 ;  1  Sutherland  on  Dam- 
ages, 71,  77,  93,  on  the  last  of  which  pages  it  is  said  that  the 
party  injured  is  entitled  to  recover  all  his  damages,  including 
gains  prevented  as  well  as  losses  sustained,  and  this  rule  is  sub- 
ject to  but  two  conditions:  that  the  damages  must  be  such  as 

685 


§§  178,  179     ACTIONS  AGAINST  CAEKIEES  OF  GOODS. 

may  fairly  be  supposed  to  have  entered  into  the  contemplation 
of  the  parties  when  they  made  the  contract,  that  is,  must  be  such 
as  might  naturally  be  expected  to  follow  its  violation;  and  they 
must  be  certain  both  in  their  nature  and  in  respect  to  the  cause 
from  which  they  proceed :  Georgia  R.  R.  v.  Hayden,  71  Ga.  518, 
51  Am.  R.  274 ;  Code,  sees.  2944,  3072-3074,  cited  and  commented 
on  in  that  case;  Willingham  v.  Hooven,  Owens,  Rentschler,  & 
Co.,  74  Ga.  233,  58  Am.  R.  435 ;  Stewart  v.  Lanier  House  Co., 
75  Id.  582. 

There  is  very  little  doubt  that  the  plaintiffs  were  entitled  to 
recover  the  necessary  expenses  incurred  in  finding  the  still- 
worm,  and  taking  posession  of  the  same.  The  result  of  that 
search  mitigated  the  damages  that  would  have  formed  a  proper 
claim  against  the  defendant.  It  should  not  complain  of  acts 
which  inured  to  its  benefit.  We  cannot  conclude  from  anything 
that  appears  in  this  record  that  the  finding  in  favor  of  the  plain- 
tiff is  excessive,  or  in  this  respect  contrary  to  the  amount  of 
actual  damages  proved  to  have  been  sustained  by  the  plaintiffs. 
It  was  the  province  of  the  court  to  interpret  and  construe  the 
contract  of  affreightment  made  between  the  plaintiffs  and  de- 
fendant, and  we  agree  with  the  judge  in  his  interpretation  of 
this  contract;  in  fact,  we  think  the  charges  excepted  to  emi- 
nently correct  and  clearly  and  happily  expressed. 

Judgment  affirmed. 


179.     COOPER  V.  YOUNG, 

22  Ga.  269;  68  Am.  D.  502.    1857. 
Case.    Judgment  for  plaintiff. 

By  Court,  McDonald,  J.  This  suit  is  instituted  against  the 
defendant,  as  a  common  carrier,  for  the  non-delivery  of  stone- 
coal  which  he  had  undertaken  to  carry  for  the  plaintiff  from 
Chattanooga  in  Tennessee  to  Etowah  in  Cass  county,  Georgia. 
The  plaintiff  is  engaged  extensively  in  the  manufacture  of  iron, 
and  relies  for  his  supply  of  coal  to  carry  on  his  operations  on 
that  which  is  carried  by  railroad  from  Chattanooga  to  the  neigh- 
borhood of  his  works.  The  coal  belonged  to  plaintiff;  the  de- 
fendant was  to  transport  it.  It  is  alleged  that  by  reason  of  the 
failure  of  defendant  to  carry  the  coal  according  to  contract  the 
plaintiff  was  obliged  to  suspend  his  work,  and  that  by  reason 
of  that  suspension  he  failed  to  make  a  certain  amount  of  per 
diem  profit,  and  this  loss  of  profit  he  insists  is  the  measure  of 
his  damages.     He  offered  proof  of  these  profits,  which  was  ob- 

686 


COOPEE  V.  YOUNG.  §  179 

jected  to  by  the  defendant's  counsel,  and  the  decision  of  the 
court  sustaining  the  objection  is  the  only  error  complained  of 
in  the  record.  The  soundness  of  the  decision  in  law  depends 
on  the  rule  by  which  damages  are  to  be  assessed  against  com- 
mon carriers  for  non-delivery  of  articles  committed  to  them  at 
the  time  and  place  stipulated  for  their  delivery.  The  general 
rule  is,  that  if  a  common  carrier  fail  to  deliver  goods  according 
to  contract  he  is  liable  for  the  value  of  the  goods  at  the  time 
and  place  at  which  he  engaged  to  deliver  them.  The  rule  is  an 
easy  and  simple  one.  It  is  just  to  the  owner,  and  does  no  in- 
justice to  the  carrier:  Sedgwick  on  Damages,  355;  Angell  on 
Carriers,  460;  Edwards  on  Bailm.  570.  In  such  cases  the  carrier 
deducts  from  the  value  at  the  place  of  destination  the  freight 
for  transporting  them,  and  pays  the  balance.  The  owner  gets  his 
profit,  and  the  carrier  gets  his  freight ;  but  if  there  be  no  trade 
in  the  article  transported  at  the  place  of  destination,  and  nothing 
of  the  kind  can  be  purchased  there,  and  the  owner  wishes  it  for 
consumption  in  carrying  on  his  business,  and  cannot  proceed 
without  it,  what  is  the  rule  ?  We  know  of  no  rule  making  the 
carrier  liable  for  the  loss  of  profits  in  the  sale  of  articles  to  be 
manufactured  of  materials  delivered  to  him  for  transportation, 
if  he  should  fail  to  deliver  them. 

When  he  undertakes  as  a  common  carrier,  he  undertakes  in 
view  of  the  liability  which  the  law  annexes  to  the  character  of 
common  carriers  for  a  breach  of  their  contracts ;  and  the  owner, 
when  he  commits  his  goods  to  him,  does  it  likewise  with  a  view 
to  the  redress  which  the  law  entitles  him  to  against  the  carrier, 
if  he  make  default.  But  because  there  is  no  trade  in  the  arti- 
cle delivered  to  be  carried  at  the  place  of  destination,  it  is  no 
reason  that  the  carrier  should  not  be  liable  for  the  breach  of  his 
contract.  The  plaintiff  is  injured,  and  seriously  injured,  by  his 
default.  In  the  case  before  us,  the  plaintiff  is  engaged  at  hea\j 
expense  in  the  manufacture  of  iron,  and  coal  is  essential  to  the 
carrying  on  of  his  business.  His  works  are  constructed  for  the 
use  of  coal,  and  a  failure  in  a  regular  supply  subjects  him  to 
serious  losses.  If  there  be  no  market  at  the  place  at  which  the 
coal  was  to  be  delivered  to  the  plaintiff  from  which  he  might 
supply  himself,  he  must  resort  to  some  other  mode  of  transpor- 
tation, however  expensive,  or  stop  his  w^orks.  In  the  case  of 
O'Connor  v.  Forster,  10  Watts,  418,  cited  in  Sedgwick  on  Dam- 
ages, 357,  the  defendant  was  sued  for  damages  for  refusing  to 
transport  wheat  from  Pittsburg  to  Philadelphia  according  to 
contract.  The  transportation  was  prevented  by  the  approaching 
freezing  of  the  canal.  The  defendant  contended  that  the  meas- 
ure of  damages  was  the  price  agreed  on  for  the  freight  and 

687 


§  179  ACTIONS  AGAINST  CAEEIEES  OF  GOODS. 

that  for  which  the  carriage  by  others  might  have  been  obtained; 
and  the  court  held  that  this  would  be  the  rule  if  the  plaintiff 
could  have  obtained  another  conveyance.  There  being  a  market 
for  wheat  at  Pittsburgh  as  well  as  Philadelphia,  the  court  held 
the  rule  of  damages  to  be  the  difference  between  the  value  of 
wheat  at  Pittsburgh,  with  the  freight  added,  and  its  value  at 
Philadelphia. 

In  estimating  the  damages  in  cases  when  the  article  to  be 
transported  cannot  be  purchased  at  the  place  of  destination,  and 
the  carrier  who  has  contracted  to  carry  it  has  the  exclusive  right 
of  transportation  by  the  cheapest  mode,  the  difference  between 
the  price  agreed  upon  or  usual  by  that  mode  and  the  terms  on 
which  others  would  carry  it  by  other  modes  of  transportation 
ought  to  be  considered;  and  in  this  case,  and  all  like  it,  it  might 
not  be  improper  to  admit,  additionally,  evidence  of  losses  by 
the  expense  of  hands,  etc.,  during  a  necessary  suspension  of 
business  occasioned  by  the  default  of  the  carrier  for  a  period 
during  which  the  plaintiff,  by  ordinary  diligence,  could  not  sup- 
ply himself  by  other  means  with  the  article  agreed  to  be  carried. 

It  is  proper  for  me  to  remark  that  the  rule  as  to  the  measure 
of  damages  in  this  case  was  not  very  fully  discussed  by  us,  as  it 
was  not  necessary  for  the  decision  of  the  question  presented  in 
the  record  to  go  beyond  the  particular  measure  of  damages  in- 
sisted on  by  the  plaintiff. 

We  know  of  no  rule  which  subjects  a  common  carrier  to  a 
higher  measure  of  damages  for  a  breach  of  his  contract  than 
the  amount  of  profits  which  the  ow^ner  might  have  made,  over 
the  freight  and  cost,  by  a  sale  at  the  time  and  place  at  which  the 
article  or  goods  to  be  transported  were  to  be  delivered,  provided 
there  be  a  market  for  the  article  there.  In  case  there  be  no  mar- 
ket for  the  commodity  or  goods,  and  the  owner  requires  them 
for  his  own  use,  I  do  not  see  why  the  rule  should  not  be  modi- 
fied to  suit  the  justice  of  the  case;  but  it  cannot,  in  our  judg- 
ment, be  so  modified  as  to  hold  that  the  carrier  shall  be  liable 
for  the  profits  which  the  owner  might  have  realized  by  the  sale 
of  articles  into  w^hich  he  might  manufacture  them.  Such  a  rule 
would  make  the  carrier  an  insurer  against  all  casualties  in  the 
process  of  manufacturing. 

Several  cases  have  been  relied  on  to  establish  the  proposition 
contended  for,  but  none  of  them,  in  our  judgment,  sustains 
it.  The  case  of  Masterton  v.  Mayor  of  Brooklyn,  7  Hill,  61,  42 
Am.  Dec.  38;  Sedgwick  on  Damages,  74,  was  not  the  case  of  a 
carrier,  but  it  was  the  ordinary  case  of  an  agreement  to  pur- 
chase, at  stipulated  prices,  marble,  to  be  delivered  as  agreed 
upon  in  the  contract.    The  seller  of  the  marble  had  to  purchase 

688 


GKEEN  V.  B.  AND  L.  K.  R.  CO.  §§  179,  130 

it.  The  agreement  had  all  the  essential  parts  of  a  contract.  One 
party  had  no  right  to  disaffirm  and  annul  it  without  the  consent 
of  the  other. 

If  the  plaintiff  in  that  action  had  been  a  defendant,  and  the 
suit  had  been  for  a  failure  to  deliver  the  marble  agreeably  to  his 
contract  of  sale,  he  could  not  have  discharged  himself  from  lia- 
bility by  alleging  that  he  could  not  himself  purchase  the  marble 
at  any  price,  but  he  would  have  been  held  to  the  contract,  and 
the  damages  to  which  he  would  have  been  subjected  would  have 
been  the  difference  between  the  price  at  which  he  had  contracted 
to  sell  it  and  the  price  that  the  plaintiff  had  or  would  have 
had  to  pay  for  it,  however  enormous,  if  it  was  a  price,  and  no 
greater,  at  which  the  same  quality  of  marble  could  be  obtained 
by  the  use  of  due  prudence  and  diligence.  If  one  of  the  ele- 
ments of  a  contract  be  mutuality  of  obligation,  the  other  party 
was  certainly  liable  for  a  breach,  from  whatever  cause,  except 
the  fault  of  the  plaintiff,  and  he  could  not  excuse  himself  by  his 
abandoning  or  suspending  the  work  on  which  he  intended  to 
use  the  marble. 

But  the  action  in  this  case  was  not  instituted  for  a  breach  of 
the  sale  of  coal  at  a  stipulated  price  to  be  delivered  at  that  place. 
Had  it  been,  the  measure  of  damages  would  have  been  the  dif- 
ference between  the  market  price  at  that  place  and  the  stipulated 
price,  without  reference  to  its  value  elsewhere. 

The  rule  which  I  have  suggested  as  the  proper,  one  for  the 
measures  of  damages  against  a  carrier  who  has  the  exclusive  right 
of  transportation  by  the  cheapest  mode,  at  the  suit  of  a  person 
engaged  extensively  in  manufacturing,  and  who,  from  the  breach 
of  the  contract  for  carrying  the  article  necessary  to  him  in  his 
business  by  the  carrier,  has  been  compelled  to  suspend  his  opera- 
tions, seems  to  meet  the  justice  of  the  case  more  nearly  than  any 
that  occurs  to  my  mind. 

Judgment  affirmed. 


180.     GREEN  V.  BOSTON  AND  LOWELL  RAILROAD  CO., 

128  Mass.  221;  35  Am.  B.  370.     1880. 

Action  against  a  carrier  for  the  value  of  ar  oil  painting  of 
plaintiff' 's  father.    Judgment  for  plaintiff. 

Morton,  J.     (Omitting  other  matters.)     The  contract  between 
the  parties  contains  the  following  provision:     "No  responsibil- 
ity will  be  admitted,   under  any   circumstances,  to  a   greater 
amount    upon  any  single  article  of  freight  than  $200,  unless 
44  689 


§  180  ACTIONS  AGAINST  CAEEIEKS  OF  GOODS. 

upon  notice  of  such  amount  and  a  special  agreement  therefor. 
Specie,  drafts,  bank-bills  and  other  articles  of  great  intrinsic 
or  representative  value,  will  only  be  taken  upon  a  representa- 
tion of  their  value,  and  by  a  special  agreement  assented  to  by 
the  superintendent."  The  defendant  asked  the  judge  to  rule, 
that  as  the  plaintiff  had  not  given  notice  of  the  value  of  the 
lost  case,  and  had  made  no  special  agreement  as  to  its  transpor- 
tation, assented  to  by  the  superintendent,  he  could  not  recover. 

The  plaintiff  admitted  that  the  first  clause  of  this  provision 
applied  to  this  case,  and  claimed  and  recovered  only  a  verdict 
for  $200.  The  other  clause  does  not  specify  portraits  as  articles 
which  will  be  taken  only  upon  a  representation  of  their  value 
and  a  special  agreement.  It  specifies  "specie,  drafts,  and  bank- 
bills."  In  determining  the  meaning  of  the  words  "other  articles 
of  great  intrinsic  or  representative  value,"  the  rule  noscitiir  a 
sociis  applies;  the  general  words  following  the  particular  enu- 
meration must  be  held  to  include  only  articles  of  the  like  kind. 

A  portrait  is  not  an  article  of  great  intrinsic  or  representative 
value,  like  specie  or  drafts  or  bank-bills,  and  therefore  the  Su- 
perior Court  rightly  refused  to  rule  as  requested  in  the  first 
and  second  prayers  of  the  defendant. 

The  defendant  asked  the  court  to  rule  that  "the  plaintiff  can 
recover  only  a  fair  market  value  of  the  article  lost."  The  gen- 
eral rule  of  damages  in  trover,  and  in  contract  for  not  deliver- 
ing goods,  undoubtedly  is  the  fair  market  value  of  the  goods. 
But  this  rule  does  not  apply  when  the  article  sued  for  is  not 
marketable  property.  To  instruct  a  jury  that  the  measure  of 
damages  for  the  conversion  or  loss  of  a  family  portrait  is  its 
market  value  would  be  merely  delusive.  It  cannot  with  any  pro- 
priety be  said  to  have  any  market  value.  The  just  rule  of  dam- 
ages is  the  actual  value  to  him  who  owns  it,  taking  into  account 
its  cost,  the  practicability  and  expense  of  replacing  it,  and  such 
other  considerations  as  in  the  particular  case  affects  its  value 
to  the  owner.  Stickney  v.  Allen,  10  Gray,  352.  The  court  prop- 
erly refused  to  give  the  instruction  requested,  and  we  are  to 
presume  gave  proper  instructions  instead  thereof.  This  being 
the  rule  of  damages,  the  testimony  of  the  plaintiff  that  he  had 
no  other  portrait  of  his  father  would  bear  upon  the  question  of 
its  actual  value  to  him  and  was  competent. 

(Omitting  other  matters.) 

Exceptions  overruled. 


690 


L.,  N.  A.  AND  C.  EY.  CO.  v.  GOODYKOONTZ.  .§  181 

181.     LOUISVILLE,  NEW  ALBANY  AND  CHICAGO  RAIL- 
WAY CO.  V.  GOODYKOONTZ, 

119  Ind.  Ill;  21  N.  E.  B.  472;  12  Am.  St.  R^  371.    1889. 

Action  by  guardian  to  recover  damages  for  negligence  causing 
death  of  ward. 

Mitchell,  J.  Goodykoontz,  as  guardian,  complains  of  the 
appellant  railroad  company,  and  charges  that  the  death  of  his 
ward,  George  Lowery,  a  minor  under  the  age  of  twenty-one 
years,  was  instantaneously  caused  by  the  negligence  and  wrong- 
ful conduct  of  the  company.  The  only  averment  upon  the  sub- 
ject of  damages  is,  that  the  ward  left  surviving  him  "a  mother 
and  sister  and  next  of  kin  competent  to  share  in  the  distribu- 
tion of  the  personal  estate  of  said  deceased,  to  whom  damages 
inure,"  and  that  by  reason  of  the  injury  and  death  the  ward's 
estate  has  been  damaged  in  the  sum  of  ten  thousand  dollars. 

There  was  a  special  verdict,  and  a  judgment  for  two  thou- 
sand five  hundred  dollars. 

It  is  conceded  that  the  action  was  brought  under  section  266, 
Revised  Statutes  of  1881,  which  reads  as  follows:  "A  father 
(or  in  case  of  his  death,  or  desertion  of  his  family,  or  imprison- 
ment, the  mother)  may  maintain  an  action  for  the  injury  or 
death  of  a  child,  and  a  guardian  for  the  injury  or  death  of  his 
ward.  But  when  the  action  is  brought  by  the  guardian  for  an 
injury  to  his  ward,  the  damages  shall  inure  to  the  benefit  of  his 
ward, ' ' 

It  was  a  settled  rule  of  the  common  law  that  that  no  one  could 
maintain  a  civil  action  for  damages  on  account  of  the  death  of 
a  human  being.  All  claims  for  injuries  to  the  person  were  ex- 
tinguished by  the  death  of  the  person  injured.  Actio  personalis 
moritur  cum  persona.  If  a  child  was  wrongfully  injured,  the 
father,  or  person  lawfully  entitled  to  the  child's  ser\aces,  might 
recover  for  the  loss  of  services  during  the  period  of  disability 
up  to  the  time  of  death,  if  death  resulted.  Incidental  damages 
for  nursing,  surgical  and  medical  attendance,  including  appro- 
priate funeral  expenses  in  case  of  death,  were  also  recoverable 
by  a  parent. 

The  statute  above  set  out  has  added  to  the  common-law  remedy 
of  a  parent  the  right  to  recover  all  the  probable  pecuniary  loss 
resulting  from  the  death  of  a  child.  The  right  of  action  is 
primarily  in  the  father,  but  contingently  in  the  mother;  and 
whether  there  be  a  guardian  or  not,  the  father,  or  under  cer- 
tain contingencies  the  mother,  may  maintain  an  action  under 

691 


§  181  ACTIONS  AGAINST  PASSENGER  CARKIEES. 

the  above  section.  In  estimating  the  damages,  the  value  of  the 
child's  services  from  the  date  of  the  injury  until  he  would  have 
attained  his  majority,  including  the  cost  of  nursing,  medical  and 
surgical  attendance,  occasioned  by  the  injury,  together  with 
necessary  funeral  expenses  if  death  resulted,  are  to  be  consid- 
ered :  Pennsylvania  Co.  v.  Lilly,  73  Ind.  252 ;  Mayhew  v.  Burns, 
103  Ind.  328,  2  N.  E.  R.  793;  Rains  v.  St.  Louis  etc.  R'y  Co.,  71 
Mo.  164,  36  Am.  R.  459 ;  McGovern  v.  New  York  etc.  R.  R.  Co., 
67  N.  Y.  417 ;  2  Thompson  on  Negligence,  1292 ;  2  Wait's  Actions 
and  Defenses,  477;  Shearman  and  Redfield  on  Negligence,  3d 
ed.,  sec.  608. 

The  foregoing  are  the  elements  which  enter  into  and  pre- 
sumably comprise  the  sum  of  the  pecuniary  loss  sustained  by 
a  parent  in  case  of  the  injury  or  death  of  his  child;  and  whether 
the  child  was  under  guardianship  or  not,  the  right  of  action  to 
recover  this  pecuniary  loss  is  in  the  parent  to  whom  the  child 
owed  service,  and  from  whom  he  was  entitled  to  receive  sup- 
port. While  either  the  father  or  mother  is  alive,  unless  they 
have  relinquished  their  right,  respectively,  to  the  services  of 
the  child,  by  emancipation  or  otherwise,  and  have  abdicated 
their  duty  to  furnish  him  support,  no  one  else  is  entitled  to 
maintain  an  action  for  the  loss  of  his  services  during  minority, 
because  the  injury  is  to  the  person  entitled  to  the  child's 
services  and  not  to  the  minor's  estate:  Walters  v.  Chicago  etc. 
R.  R.  Co.,  36  Iowa,  458 ;  Cooley  on  Torts,  314  et  seq. 

If  a  minor  under  guardianship  sustains  an  injury  to  his  per- 
son from  the  wrongful  conduct  of  another,  his  guardian  may 
maintain  an  action  and  recover  for  the  benefit  of  the  ward,  pre- 
cisely as  the  latter  might  have  recovered  through  the  interven- 
tion of  a  prochein  ami,  in  case  he  had  not  been  under  guardian- 
ship. This  is  so,  whether  the  ward's  father  or  mother  be  living 
or  not.  The  pain  and  suffering  endured  and  the  permanent  in- 
jury resulting  from  the  wounding  or  maiming  of  a  minor  are 
personal  to  himself,  and  damages  for  such  pain  and  injuries  are 
always  recoverable  for  his  benefit.  We  know  of  no  principle 
or  precedent  which  sustains  a  recovery  of  damages  for  the  death 
of  a  human  being,  no  matter  how  caused,  simply  for  the  purpose 
of  enhancing  the  value  of  the  decedent's  estate.  The  action  is 
given  to  afford  compensation  for  those  who  have  sustained  pecu- 
niary loss  by  the  death,  and  not  for  the  benefit  of  the  decadent's 
estate.  Doubtless,  a  guardian  who  has  been  required  to  make 
expenditures  for  care  and  medical  attendance,  or  for  funeral 
expenses,  out  of  his  ward's  personal  property,  may  maintain  an 
action  against  a  wrong-doer  to  reimburse  the  estate;  but  surely 
he  cannot  recover  general  damages  for  the  death  of  the  ward 

692 


L.,  N.  A.  AND  C.  RY.  CO.  v.  GOODYKOONTZ.  §  181 

for  the  benefit  of  his  estate,  no  matter  who  inherit  as  his  heirs. 
Damages  cannot  be  recovered  for  the  death  of  a  human  being, 
except  by  or  for  the  benefit  of  those  who  are  supposed  to  have 
sustained  a  sensible  and  appreciable  pecuniary  loss  therefrom. 
Pecuniary  loss,  not  to  the  estate  of  the  deceased  person,  but  to 
those  who  had  a  reasonable  expectation  of  pecuniary  benefit, 
as  of  right,  or  of  duty,  or  from  a  recognized  sense  of  obligation, 
from  the  continuance  of  life,  is  the  foundation  of  the  action: 
Franklin  v.  South  Eastern  R'y  Co.,  3  Hurl.  &  N.  211;  Dalton  v. 
South  Eastern  E'y  Co.,  4  Com.  B.,  N.  S.,  296;  Pennsylvania  R. 
R.  Co.  v.  Adams,  55  Pa.  St.  499 ;  Mayhew  v.  Burns,  supra;  North 
Pennsylvania  R.  R.  Co.  v.  Kirk,  90  Pa.  St.  15.  It  is  the  injury 
to  the  survivors  entitled  to  sue,  and  not  the  value  of  the  life  lost, 
that  forms  the  basis  of  damages :  Pennsylvania  R.  R.  Co.  v.  Zebe, 
33  Id.  318. 

Under  section  266,  only  persons  having  a  reasonable  expecta- 
tion of  pecuniary  benefit,  as  of  right,  duty,  or  obligation,  in 
some  sense,  from  the  continuance  of  the  life,  are  entitled  to 
maintain  the  action,  unless  possibly  under  exceptional  circum- 
stances clearly  showing  appreciable  pecuniary  loss.  Section 
284,  which  gives  a  right  of  action  to  the  personal  representa- 
tives for  the  exclusive  benefit  of  the  widow  and  children,  or 
next  of  kin,  is  entirely  disconnected  from  section  266,  and  exerts 
no  sort  of  influence  upon  the  construction  of  or  rights  conferred 
under  the  latter  section:  IMayhew  v.  Burns,  supra.  The  two 
are  not  to  be  confused  or  confounded  with  each  other,  but  each 
is  to  be  construed  independently  of  the  other. 

Where  the  death  of  a  minor  has  been  wrongfully  caused,  the 
parent  may  maintain  an  action  to  recover  the  probable  pecu- 
niary loss  sustained.  The  guardian,  if  there  be  one,  may,  no 
action  having  been  brought  by  the  parent,  maintain  an  action 
to  reimburse  the  personal  estate  of  the  ward  for  any  actual 
loss:  Section  266.  If  the  death  of  any  one  is  caused  in  like 
manner,  an  action  may  be  maintained  by  his  personal  repre- 
sentatives, provided  the  person  whose  death  has  been  caused 
left  a  wife  or  children,  or  next  of  kin,  who  had  any  appreciable 
pecuniary  interest  in  the  continuance  of  his  life:  Section  284; 
~  Mayhew  v.  Burns,  supra,  and  cases  cited. 

It  appears,  from  the  complaint  in  the  present  ease,  that  the 
ward  whose  death  gave  rise  to  the  action  was  a  minor,  and  that 
his  mother  was  alive  at  the  time  the  suit  was  commenced.  Pre- 
sumably she  was,  and  is  yet,  unless  barred  by  lapse  of  time,  en- 
titled to  maintain  an  action  to  recover  for  the  loss  of  her  son's 
services.  Death  was  instantaneous,  and  it  does  not  appear  that 
the  guardian  paid  anything  out  of  the  ward's  personal  estate 

693 


§§181,182    ACTIONS  AGAINST  PASSENGEE  CAEEIEES. 

for  funeral  expenses.     Hence  the  complaint  shows  no  right  of 
action  in  the  guardian. 

The  judgment  is  therefore  reversed,  with  costs. 


182.     CARSTEN  V.  NORTHERN  PACIFIC  RAILROAD  CO., 

44  Minn.  454;  47  N.  W.  R.  49;  20  Am.  St.  B.  589.    1890. 

Damages  for  wrongful  ejection  from  a  train.  Plaintiff  pur- 
chased of  a  ticket  broker  the  return  portion  of  a  limited  round- 
trip  ticket.  An  agent  styled  a  "ticket-exchanger,"  acting  as 
assistant  to  the  conductor,  notified  plaintiff  that  his  ticket  was 
not  good  because  purchased  at  a  scalper 's  office,  and  took  up  and 
retained  the  ticket.  The  regular  conductor  later  affirmed  this 
and  told  plaintiff'  he  must  leave  the  train  unless  he  paid  his  fare. 
As  the  train  approached  a  station  he  returned  with  two  brake- 
men  to  eject  plaintiff,  put  his  hand  on  plaintiff's  shoulder  and 
without  violence  or  abuse  led  him  to  the  door.  A  stranger,  how- 
ever, paid  his  fare  to  Brainerd,  where  plaintiff  voluntarily  left 
the  train, 

Vanderburgh,  J.  ...  1.  The  evidence  is  sufficient  to  show  that 
the  ticket  was  genuine  and  was  good  for  one  passage  from  Minne- 
apolis to  Detroit  as  a  return  ticket,  and  that  it  was  wrongfully 
taken  away  from  plaintiff',  and  appropriated  by  the  agent  of  the 
defendant.  The  ticket  was  transferable  in  the  absence  of  any 
restrictions  in  the  original  contract  of  sale,  and  was  valid  in 
plaintiff's  hands.  The  conductor  was  fully  advised  of  the  facts 
in  the  case,  which  he  could  verify  by  reference  to  his  assistant 
on  the  same  train.  His  conduct  in  requiring  the  plaintiff  to 
leave  the  train  was  therefore  wrongful:  Burnham  v.  Grand 
Trunk  R'y  Co.,  63  Me.  298,  18  Am.  Rep.  220. 

2.  It  is  an  action  sounding  in  tort,  and  we  think  the  plaintiff 
entitled  to  claim  damages  for  the  wrong  and  injury  done  him, 
in  addition  to  the  price  of  the  ticket,  though  no  particular  loss 
or  special  injury  to  his  person  was  shown.  The  evidence  tended 
to  prove  that  the  agents  of  the  defendant  laid  hands  on  hira, 
and  were  proceeding  to  eject  him  by  force,  if  necessary,  from 
the  car,  which  was  full  of  passengers.  The  fact  that  he  escaped 
personal  violence  by  non-resistance  does  not  deprive  him  of  his 
right  of  action ;  and  the  jury  were  entitled  to  consider,  in  con- 
nection with  the  physical  acts  of  the  conductor  in  wrongfully 
attempting  to  eject  him,  the  annoyance,  vexation,  and  mortifica 
tion  suffered  by  him,  and  the  indignity  put  upon  him :  Chicago 
etc.  R.  R.  Co.  V.  Flagg,  43  111.  364;  92  Am.  Dec.  133;  3  Suther- 

694 


SPADE  V.  LYNN  AND  BOSTON  E.  E.  CO.      §§  182,  183 

land  on  Damages,  712,  715 ;  2  Beach  on  Railway  Law,  sec.  891. 
But  the  jury  must  be  governed  by  the  evidence,  and  the  dam- 
ages assessed  must  be  appropriate  to  the  nature  of  the  case, 
which  will  be  modified  by  the  circumstances,  such  as  the  presence 
or  absence  of  personal  malice,  actual  violence,  and  threatening 
or  insulting  language:  Chicago  etc.  R.  R.  Co.  v.  Parks,  18  111. 
460,  68  Am.  Dec.  562,  573.  The  instruction  given  by  the  court 
to  the  jury,  that  if  the  conductor  took  up  the  ticket,  and  failed 
to  give  any  excuse  for  his  refusal  to  return  the  same  to  plaintiff, 
and  no  excuse  existed,  they  might  presume  that  he  acted  malevo- 
lently, and  with  a  tyrannical  and  oppressive  motive,  and  might 
award  him  ' '  any  amount  of  damages  that  is  proper,  not  exceed- 
ing the  sum  of  one  thousand  dollars,"  was,  we  think,  in  view  of 
the  evidence  in  the  case,  erroneous,  and  likely  to  mislead  the 
jury  as  to  the  extent  of  their  discretion  on  the  question  of  dam- 
ages. 

3.  The  plaintiff  was  permitted,  against  the  objection  of  the 
defendant,  to  prove  that,  by  reason  of  his  delay  at  Brainerd, 
he  lost  a  job  of  thrashing  at  Detroit,  for  which  he  expected  $2.25 
per  day.  He  testified  that  he  was  detained  there  for  a  week  for 
want  of  money  to  go  any  farther,  and  this  alleged  loss  the  jury 
were  allovred  to  consider.  This  was  error.  Such  damages  are 
too  remote.  They  cannot  be  considered  the  proximate  result  of 
the  alleged  wrongful  act  of  the  conductor.  There  must  have 
been  several  other  independent  causes  to  which  the  same  result 
might  have  been  referred :    BroAvn  v.  Cummings,  7  Allen,  507. 

Order  reversed. 


183.     SPADE  V.  LYNN  AND  BOSTON  RAILROAD  CO., 

168  Mass.  285;  47  N.  E.  R.  88;  60  Am.  St.  B.  393.    1897. 

Tort  for  injuries  to  a  passenger  due  to  fright  caused  by  the 
ejection  from  the  car  of  a  drunken  passenger.  No  other  injury 
was  suffered.    Judgment  for  plaintiff. 

Allen,  J.  This  ease  presents  a  question  which  has  not  here- 
tofore been  determined  in  this  commonwealth,  and  in  respect 
to  which  the  decisions  elsewhere  have  not  been  uniform.  It 
is  this:  whether,  in  an  action  to  recover  damages  for  an  injury 
sustained  through  the  negligence  of  another,  there  can  be  a  re- 
covery for  a  bodily  injury  caused  by  mere  fright  and  mental 
disturbance.  The  jury  were  instructed  that  a  person  cannot  re- 
cover for  mere  fright,  fear,  or  mental  distress  occasioned  by 
the  negligence  of  another,  which  does  not  result  in  bodily  injury ; 

695 


§  183  ACTIONS  AGAINST  PASSENGEE  CAKEIEKS. 

but  that  when  the  fright  or  fear  or  nervous  shock  produces  a 
bodily  injury,  there  may  be  a  recovery  for  that  bodily  injury, 
and  for  all  the  pain,  mental  or  otherwise,  which  may  arise  out 
of  that  bodily  injury. 

In  Canning  v.  Williamstown,  1  Cush.  451,  it  was  held,  in  an 
action  against  a  town  to  recover  damages  for  an  injury  sustained 
by  the  plaintiff  in  consequence  of  a  defective  bridge,  that  he 
could  not  recover  if  he  sustained  no  injury  to  his  person,  but 
merely  incurred  risk  and  peril  which  caused  fright  and  mental 
suffering.  In  Warren  v.  Boston  etc.  R.  R.  Co.,  163  Mass.  484, 
40  N.  E.  R.  895,  the  evidence  tended  to  show  that  the  defendant's 
train  struck  the  carriage  of  the  plaintiff,  thereby  throwing  him 
out  upon  the  ground,  and  it  was  held  to  be  a  physical  injury  to 
the  person  to  be  thrown  out  of  a  wagon,  or  to  be  compelled  to 
jump  out,  even  although  the  harm  consists  mainly  of  nervous 
shock.  It  was  not,  therefore,  a  case  of  mere  fright,  and  resulting 
nervous  shock. 

The  case  calls  for  a  consideration  of  the  real  ground  upon 
which  the  liability  or  nonliability  of  a  defendant  guilty  of  neg- 
ligence in  a  case  like  the  present  demands.  The  exemption  from 
liability  for  mere  fright,  terror,  alarm,  or  anxiety  does  not  rest 
on  the  assumption  that  these  do  not  constitute  an  actual  in- 
jury. They  do  in  fact  deprive  one  of  enjoyment  and  of  com- 
fort, cause  real  suffering,  and  to  a  greater  or  less  extent  dis- 
qualify one  for  the  time  being  from  doing  the  duties  of  life.  If 
these  results  flow  from  a  wrongful  or  negligent  act,  a  recovery 
therefor  cannot  be  denied  on  the  ground  that  the  injury  is  fanci- 
ful and  not  real.  Nor  can  it  be  maintained  that  these  results 
may  not  be  the  direct  and  immediate  consequence  of  the  negli- 
gence. Danger  excites  alarm.  Few  people  are  wholly  insensible 
to  the  emotions  caused  by  imminent  danger,  though  some  are 
less  affected  than  others. 

It  must  also  be  admitted  that  a  timid  or  sensitive  person  may 
suffer  not  only  in  mind,  but  also  in  body,  from  such  a  cause.  Great 
emotion  may,  and  sometimes  does,  produce  physical  effects. 
The  action  of  the  heart,  the  circulation  of  the  blood,  the  tem- 
perature of  the  body,  as  well  as  the  nerves  and  the  appetite, 
may  all  be  affected.  A  physical  injury  may  be  directly  traceable 
to  fright,  and  so  may  be  caused  by  it.  We  cannot  say,  therefore, 
that  such  consequences  may  not  flow  proximately  from  uninten- 
tional negligence,  and,  if  compensation  in  damages  may  be  re- 
covered for  a  physical  injury  so  caused,  it  is  hard  on  principle 
to  say  why  there  should  not  also  be  a  recovery  for  the  mere  men- 
tal suffering  when  not  accompanied  by  any  perceptible  physical 
effects. 

696 


SPADE  V.  LYNN  AND  BOSTON  E.  K.  CO.  §  IS 3 

It  would  seem,  therefore,  that  the  real  reason  for  refusing 
damages  sustained  from  mere  fright  must  be  something  differ- 
ent ;  and  it  probably  rests  on  the  ground  that  in  practice  it  is  im- 
possible satisfactorily  to  administer  any  other  rule.  The  law 
must  be  administered  in  the  courts  according  to  general  rules. 
Courts  will  aim  to  make  these  rules  as  just  as  possible,  bearing 
in  mind  that  they  are  to  be  of  general  application.  But  as  the 
law  is  a  practical  science,  having  to  do  with  the  affairs  of  life, 
any  rule  is  unwise  if,  in  its  general  application,  it  will  not  as  a 
usual  result  serve  the  purposes  of  justice.  A  new  rule  cannot 
be  made  for  each  case,  and  there  must,  therefore,  be  a  certain 
generality  in  rules  of  law,  which  in  particular  cases  may  fail 
to  meet  what  would  be  desirable  if  the  single  case  were  alone  to 
be  considered. 

Rules  of  law  respecting  the  recovery  of  damages  are  framed 
with  reference  to  the  just  rights  of  both  parties;  not  merely 
what  it  might  be  right  for  an  injured  person  to  receive,  to  afford 
just  compensation  for  his  injury,  but  also  what  it  is  just  to  com- 
pel the  other  party  to  pay.  One  cannot  always  look  to  others 
to  make  compensation  for  injuries  received.  Many  accidents 
occur,  the  consequences  of  which  the  sufferer  must  bear  alone. 
And  in  determining  the  rules  of  law  by  which  the  right  to  re- 
cover compensation  for  unintended  injury  from  others  is  to  be 
governed,  regard  must  chiefly  be  paid  to  such  conditions  as  are 
usually  found  to  exist.  Not  only  the  transportation  of  passen- 
gers and  the  running  of  trains,  but  the  general  conduct  of  busi- 
ness and  of  the  ordinary  affairs  of  life,  must  be  done  on  the 
assumption  that  persons  who  are  liable  to  be  affected  thereby 
are  not  peculiarly  sensitive,  and  are  of  ordinary  physical  and 
mental  strength.  If,  for  example,  a  traveler  is  sick  or  infirm, 
delicate  in  health,  specially  nervous  or  emotional,  liable  to  be 
upset  by  slight  causes,  and  therefore  requiring  precautions  which 
are  not  usual  or  practicable  for  travelers  in  general,  notice  should 
be  given,  so  that,  if  reasonably  practicable,  arrangements  may 
be  made  accordingly,  and  extra  care  be  observed.  But,  as  a  gen- 
eral rule,  a  carrier  of  passengers  is  not  bound  to  anticipate  or 
to  guard  against  an  injurious  result  which  would  only  happen 
to  a  person  of  peculiar  sensitiveness.  This  limitation  of  liability 
for  injury  of  another  description  is  intimated  in  Allsop  v,  Allsop, 
5  Hurl.  &  N.  534,  538,  539.  One  may  be  held  bound  to  antici- 
pate and  guard  against  the  probable  consequences  to  ordinary 
people,  but  to  carry  the  rule  of  damages  further  imposes  an  un- 
due measure  of  responsibility  upon  those  who  are  guilty  only 
of  unintentional  negligence.  The  general  rule  limiting  damages 
in  such  a  case  to  the  natural  and  probable  consequences  of  the 

697 


§  183  ACTIONS  AGAINST  PASSENGER  CAERIEES. 

acts  done  is  of  wide  application,  and  has  often  been  expressed 
and  applied:  Lombard  v.  Lennox,  155  Mass.  70,  28  N.  E,  R. 
1125,  31  Am.  St.  R.  528;  White  v.  Dresser,  135  Mass.  150,  46 
Am.  R.  454 ;  Fillebrown  v.  Hoar,  124  Mass.  580 ;  Derry  v.  Flitner, 
118  Mass.  131;  Milwaukee  etc.  Ry.  Co.  v.  Kellogg,  94  U.  S.  469, 
475;  Wyman  v.  Leavitt,  71  Me.  227,  36  Am.  R.  308;  Ellis  v. 
Cleveland,  55  Vt.  358 ;  Phillips  v.  Dickerson,  85  111.  11,  28  Am. 
R.  607;  Hampton  v.  Jones,  58  Iowa  317,  12  N.  W.  R.  276;  Ren- 
ner  v.  Canfield,  36  Minn.  90,  30  N.  W.  R.  435,  1  Am.  St.  R.  654 ; 
Lynch  v.  Knight,  9  H.  L.  Cas.  577,  591,  595,  598 ;  The  Notting 
Hill,  L.  R.  9  P.  D.  105 ;  Hobbs  v.  London  etc.  Ry.,  L.  R.  10  Q.  B. 
Ill,  122. 

The  law  of  negligence  in  its  special  application  to  cases  of 
accidents  has  received  great  development  in  recent  years.  The 
number  of  actions  brought  is  very  great.  This  should  lead  courts 
well  to  consider  the  grounds  on  which  claims  for  compensation 
properly  rest,  and  the  necessary  limitations  of  the  right  to  re- 
cover. We  remain  satisfied  with  the  rule  that  there  can  be  no 
recovery  for  fright,  terror,  alarm,  anxiety,  or  distress  of  mind, 
if  these  are  unaccompanied  by  some  physical  injury;  and,  if  this 
rule  is  to  stand,  we  think  it  should  also  be  held  that  there  can 
be  no  recovery  for  such  physical  injuries  as  may  be  caused  solely 
by  such  mental  disturbance,  where  there  is  no  injury  to  the  per- 
son from  without.  The  logical  vindication  of  this  rule  is,  that  it 
is  unreasonable  to  hold  persons  who  are  merely  negligent  bound 
to  anticipate  and  guard  against  fright  and  the  consequences 
of  fright;  and  that  this  would  open  a  wide  door  for  unjust 
claims,  which  could  not  successfully  be  met.  These  views  are 
supported  by  the  following  decisions:  Victorian  Ry.  Commrs. 
V.  Coultas,  L.  R.  13  App.  Cas.  222;  Mitchell  v.  Rochester  Ry. 
Co.,  151  N.  Y.  107,  45  N.  E.  R.  354,  56  Am.  St.  R.  604;  Ewing  v. 
Pittsburg  etc.  Ry.  Co.,  147  Pa.  St.  40,  23  Atl.  R.  340,  30  Am.  St. 
R.  709 ;  Haile  v.  Texas  etc.  Ry.  Co.,  60  Fed.  Rep.  557. 

In  the  following  cases,  a  different  view  was  taken:  Bell  v. 
Great  Northern  Ry.  Co.,  26  L.  R.  Ir.  428 ;  Purcell  v.  St.  Paul 
City  Ry.  Co.,  48  Minn.  134,  50  N.  W.  R.  1034;  Fitzpatrick  v. 
Great  Western  Ry.  Co.,  12  U.  C.  Q.  B.  645.  See,  also,  Beven  on 
Negligence,  77,  et  seq. 

It  is  hardly  necessary  to  add  that  this  decision  does  not  reach 
those  classes  of  actions  where  an  intention  to  cause  mental  dis- 
tress or  to  hurt  the  feelings  is  shown,  or  is  reasonably  to  be  in- 
ferred, as,  for  example,  in  cases  of  seduction,  slander,  malicious 
prosecution,  or  arrest,  and  some  others.  Nor  do  we  include  cases 
of  acts  done  with  gross  carelessness  or  recklessness,  showing 
utter  indifference  to  such  consequences,  when  they  must  have 

698 


FEEGUSON  V.  ANGLO-AMEKICAN  TEL.  CO.     §§  183,  184 

been  in  the  actor's  mind:  Lombard  v.  Lennox,  155  Mass.  70, 
28  N.  E.  R.  1125,  31  Am.  St.  R.  528;  Fillebrown  v.  Hoar,  124 
Mass.  580 ;  Meagher  v.  Driscoll,  99  Mass.  281,  96  Am.  D.  759. 

In  the  present  case,  no  such  considerations  entered  into  the 
rulings  or  were  presented  by  the  facts.  The  entry  therefore 
must  be,  exceptions  sustained. 


184.     FERGUSON    V.    ANGLO-AMERICAN    TELEGRAPH 

CO., 

178  Pa.  St.  377;  35  Atl.  R.  979;  56  Am.  St.  B.    770.    1896. 

Action  to  recover  damages  for  delay  in  delivering  a  cipher 
telegraph  message. 

McCoLLUM,  J.  This  was  an  action  for  damages  caused  by 
the  failure  of  the  defendant  to  deliver  promptly  a  telegraph 
message  written  in  cipher.  The  evidence  was  to  the  following 
effect :  Plaintiffs,  on  March  15,  1890,  sent  two  cable  messages  in 
cipher,  addressed  to  "Oetorara,"  "Liverpool,"  the  first  of  which 
ordered  the  purchase  of  fiftj^  tons  of  soda  ash,  and  the  second 
ordered  one  hundred  tons  of  the  same,  subject  to  shipment  on 
the  steamer  Kingsdale.  The  first  message  was  duly  delivered  to 
plaintiffs'  agents,  the  second  was  not  delivered  until  six  days 
afterward.  The  steamer  Kingsdale  had  sailed  in  the  mean  time. 
The  delayed  message  reads  as  follows:  "Bewail  boarish,  bewail 
bluster,  provided  steamer  Kingsdale,"  and  was  interpreted  to 
mean  "purchase  for  our  account  50  tons  jarrow  55-56  per  cent 
soda  ash,  50  tons  jarrow  48  per  cent  soda  ash,  provided  shipment 
can  be  made  per  steamship  Kingsdale."  The  plaintiffs  had  con- 
tracted for  a  resale  of  the  entire  one  hundred  and  fifty  tons,  and, 
when  the  one  hundred  tons  failed  to  arrive,  they  were  compelled 
to  pay  a  higher  price  to  fill  their  contract,  and  thereby  lost  eight 
hundred  and  ninety-two  dollars  and  seventy-two  cents.  The 
plaintiffs  claimed  that  this  was  the  measure  of  damages,  but  the 
court  confined  it  to  the  sum  paid  for  transmission  of  the  mes- 
sage. Was  this  ruling  erroneous?  Is  seems  that  the  question 
now  presented  has  not  been  decided  by  this  court.  It  has  been 
frequently  considered  in  many  of  the  courts  of  our  sister  states 
and  in  England,  and  the  great  preponderance  of  authority  is  in 
accord  with  the  ruling  of  the  court  below.  The  rule  on  this 
subject  is  stated  in  25  American  and  English  Encyclopedia  of 
Law,  842,  843,  as  follows:  "The  rule  already  set  out  as  to  the 
measure  of  damages  confines  the  plaintiff's  recovery,  in  actions 

699 


§  184  ACTIONS  AGAINST  TELEGSAPH  COMPANIES. 

against  the  company  for  negligence,  to  snch  as  may  fairly  be  sup- 
posed to  have  been  in  contemplation  of  the  parties  at  the  time  of 
making  the  contract.  This  being  true,  it  follows  as  a  logical  and 
necessary  sequence  that  where  the  message  as  delivered  for  trans- 
mission is  unintelligible,  except  to  the  sender  or  the  addressee, 
and  the  company  had  no  information  otherwise  as  to  its  character 
and  purport,  nor  of  its  importance  and  urgency,  the  party  in- 
jured can  recover  of  the  company  nothing  more  than  nominal 
damages  or  at  most  the  price  paid  for  transmission.  And  this  is 
the  rule  which  has  been  adopted  by  the  English  and  American 
Courts  almost  without  exception. ' '  Many  decisions  of  the  courts 
of  this  country  and  England  are  cited  as  sustaining  the  rule 
above  stated.  The  numerous  decisions  of  the  courts  of  many 
states  Avill  be  found  to  be  opposed  to  the  decisions  of  the  courts 
of  only  three  states,  those  of  Virginia,  Georgia,  and  Alabama. 
Florida  has  recently  reversed  an  earlier  ease,  and  thus  joined  the 
majority  of  the  states  on  this  question.  The  reasons  advanced 
in  support  of  the  decisions  which  support  the  ruling  of  the  court 
below  have  been  various,  the  one  most  commonly  applied  being 
the  rule  of  Hadley  v.  Baxendale,  9  Ex.  341.  It  is  earnestly  con- 
tended by  the  appellants  that  the  rule  of  Hadley  v.  Baxendale,  9 
Ex.  341,  has  no  application  to  the  case  in  hand,  that  the  word 
"contemplate"  is  there  used  as  contradistinguishing  what  is 
proximate  and  direct  from  what  is  remote  and  speculative,  as  in 
Pennypacker  v.  Jones,  106  Pa.  St.  237,  and  Adams  Express  Co. 
V.  Egbert,  36  Pa.  St.  360,  78  Am.  Dec.  382.  They  also  call  our 
attention  to  the  fact  that  the  view  of  Hadley  v.  Baxendale,  9  Ex. 
341,  contended  for  by  the  defendant,  has  been  unsuccessfully 
urged  upon  this  court  at  least  twice  before,  namely,  in  United 
States  Tel.  Co.  v.  Wenger,  55  Pa.  St.  262,  93  Am.  Dec.  751,  and 
Telegraph  Co.  v.  Landis,  21  Week.  Not.  Cas.  38,  and  that  there- 
fore this  question  is  not  an  open  one. 

We  do  not  concede  that  the  rule  of  Hadley  v.  Baxendale,  9  Ex. 
341,  has  no  application  to  this  case,  nor  that  the  decision  of  this 
court  in  United  States  Tel.  Co.  v.  Wenger,  55  Pa.  St.  262,  93  Am. 
Dec.  751,  or  in  Telegraph  Co.  v.  Landis,  21  Week.  Not.  Cas.  38, 
is  opposed  to  the  ruling  of  the  court  below.  The  message  in 
United  States  Tel.  Co.  v.  Wenger,  55  Pa.  St.  262,  93  Am.  Dec. 
751,  disclosed  to  the  agent  of  the  company  the  nature  of  the  busi- 
ness to  which  it  related,  and  there  was  uncontradicted  evi- 
dence that  the  sender  ' '  notified  the  operator  that  he  would  look 
to  the  company  for  damages  if  they  failed  in  transmitting  the 
message."  In  Telegraph  Co.  v.  Landis,  21  Week.  Not.  Cas.  38, 
there  was  enough  on  the  face  of  the  message  ''to  indicate  to  the 
operator  that  it  referred  to  sheep,  to  be  shipped  to  Philadelphia 

700 


FERGUSON  V.  ANGLO-AMEEICAN  'iEL.  CO.  §  184 

and  their  price."     It  was  a  case,  not  of  delay,  but  of  error  in 
transmission,  and  Paxson,  J.,  speaking  for  this  court  said:    "It 
seems  reasonable  that  where  damages  are  claimed  for  mere  delay 
in  delivery,  the  face  of  the  telegram  ought  to  contain  something 
to  put  the  company  on  its  guard.    A  delay  of  a  day,  or  even  a 
few  hours,  might  cause  a  heavy  loss."     This  suggestion  is  ap- 
plicable to  the  case  now  before  us  and  in  harmony  with  the  view 
taken  in  Abeles  v.  Western  Union  Tel.  Co.,  37  Mo.  App.  554,  in 
which  the  court  said:    "Aside  from  the  reasons  which  support 
the  rule  of  damages  in  Hadley  v.  Baxendale,  9  Ex.  341,  there 
is  here  a  question  of  public  policy  to  which  we  could  not  shut  our 
eyes  if  we  were  in  doubt  upon  the  question.    Upon  any  other  rule, 
where  a  cipher  dispatch  is  delivered  to  a  telegraph  company  for 
transmission,  and  not  translated  to  them,  and  there  is  a  delay 
in  delivering  it  or  a  total  failure  to  deliver  it,  the  door  is  open 
to  unlimited  fraud  upon  the  company.    The  evidence  of  its  mean- 
irg  is  entirely  in  the  breast  of  the  sender  and  person  to  whom 
it  Is  sent.     They  may  construct  any  meaning  they  choose,  and, 
upon  the  meaning  thus  constructed,  they  may,  by  evidence  which 
the  company  will  be  powerless  to  rebut,  construct  any  fabric  of 
facts  on  which  to  build  an  action  for  damages  which  they  may 
see  fit."     That  the  measure  of  damages  contended  for  by  the 
appellants  might  produce  such  results  is  obvious.     Under  it  a 
telegraph  company  may  receive  for  transmission  a  cipher  mes- 
sage which  on  its  face  is  absolutely  unintelligible  to  them,  and 
was  intended  by  the  sender  to  be  so,  and  for  the  slightest  delay 
in  transmitting  it  they  may  be  charged  with  damages  which  can- 
not reasonably  be  supposed  to  have  been  in  the  contemplation  of 
both  parties  when  they  received  it.    Surely  such  a  message  fur- 
nishes no  tangible  ground  for  an  inference  that  it  relates  to  an 
important  business  transaction,  or  that  the  slightest  delay  in  the 
delivery  of  it  might  subject  the  company  to  liability  for  such 
damages  as  are  claimed  in  this  case.     In  Candee  v.  Western 
Union  Tel.  Co.,  34  Wis.  471,  17  Am.  Rep.  452,  Dixon,  C.  J.,  said : 
"It  cannot  be  said  or  assumed  that  any  amount  of  damages  or 
pecuniary  loss  or  injury  will  naturally  ensue  or  be  suffered  ac- 
cording to  the  usual  course  of  things,  from  the  failure  to  trans- 
mit a  message,  the  meaning  and  import  of  which  are  wholly 
unkno^vn  to  the  operator.     The  operator  who  receives,  and  who 
represents  the  company,  and  may  for  this  purpose  be  said  to  be 
the  other  party  to  the  contract,  cannot  be  supposed  to  look  upon 
such  a  message  as  one  pertaining  to  transactions  of  pecuniary 
value  and  importance,  and  in  respect  of  which  pecuniary  loss 
or  damages  will  naturally  arise  in  case  of  his  failure  or  omission 
to  send  it.    It  may  be  a  mere  item  of  news,  or  some  other  com- 

701 


§§  184,  185    ACTIONS  AGAINST  TELEGKAPH  COMPANIES. 

munication  of  trifling  or  unimportant  character.  Ignorant  of 
its  real  nature  and  importance,  it  cannot  be  said  to  have  been  in 
his  contemplation  at  the  time  of  making  the  contract  that  any- 
particular  damage  or  injury  would  be  the  probable  result  of  a 
breach  of  the  contract  on  his  part."  To  subject  the  company  to 
the  same  liability  for  mistake  or  delay  in  the  transmission  of 
such  a  message  that  it  might  be  subject  to  for  a  like  mistake  or 
delay  in  the  transmission  of  an  intelligible  message  would  open 
the  door  to  the  perpetration  of  fraud,  and  disregard  the  well- 
settled  rule  of  Hadley  v.  Baxendale,  9  Ex.  341.  We  find  nothing 
in  Adams  Exp.  Co.  v.  Egbert,  36  Pa.  St.  360,  78  Am.  Dee.  382, 
or  in  Pennypacker  v.  Jones,  106  Pa.  St.  237,  which  can  be  con- 
sidered as  a  repudiation  or  qualification  of  that  rule,  or  in  the 
way  of  its  application  to  the  case  at  bar.  For  the  reasons  above 
stated,  we  concur  in  the  ruling  of  the  court  below. 
Judgment  affirmed. 


185.     MENTZER  V.  WESTERN  UNION  TELEGRAPH  CO., 

93  la.  752;  62  N.  W.  B.  1;  57  Am.  St.  R.  294.    1895. 

Action  for  damages  caused  by  delay  in  delivering  a  telegram. 

Judgment  for  plaintiff. 

Deemer,  J.  There  was  testimony  tending  to  show,  and  the 
jury  may  well  have  found  that  on  the  eleventh  day  of  April, 
1892,  one  H.  Dorn  delivered  to  defendant,  at  Creston,  Ohio, 
to  be  transmitted  to  plaintiff,  at  Cedar  Rapids,  Iowa,  the  follow- 
ing telegraphic  message : 

"Creston,  Ohio,  11,  1892. 
To  J.  D.  Mentzer,  Cedar  Rapids,  Iowa : 

Mother  dead.    Funeral  Wednesday.    Answer  if  coming  or  not. 

H.  Dorn." 

That  Dorn  paid  the  regular  charges  for  transmitting  the  same, 
and,  at  the  time  of  the  delivery  of  the  message,  informed  de- 
fendant's employee  in  charge  of  the  office  at  Creston  that  it  was 
plaintiff's  mother  who  was  dead.  That  the  message  reached  de- 
fendant's office  at  Cedar  Rapids  at  9:16  A.  M.,  April  11,  1892, 
but  through  the  negligence  and  carelessness  of  defendant's  em- 
ployees, was  not  delivered  until  9  P.  M.,  April  13th.  The  plain- 
tiff inquired  at  defendant's  office  at  Cedar  Rapids  at  about  7 
o'clock  in  the  evening  of  April  11th,  and  was  informed  there  was 
nothing  there  for  him.  It  is  shown  beyond  dispute  that  plain- 
tiff's mother  died  at  Creston,  Ohio,  on  April  11,  1892,  and  was 

702 


MENTZEE  V.  W.  U.  TELEGKAPH  CO.  §  185 

buried  on  the  13th,  and  that,  by  reason  of  the  failure  of  de- 
fendant to  deliver  the  message  informing  plaintiff  of  her  death, 
he  was  prevented  from  attending  her  funeral.  There  was  also 
testimony  tending  to  show  that  plaintiff  lost  some  time  from  his 
work,  in  trying  to  discover  whether  a  message  had  been  sent  him 
or  not.  The  court  gave  the  jury  the  following  instructions  with 
reference  to  the  measure  of  damages,  in  the  event  they  found 
plaintiff  entitled  to  recover:  "7.  If  you  find  for  plaintiff,  then 
you  will  allow  him  for  the  amounts  he  paid  for  messages  sent 
by  him,  if  any ;  for  loss  of  time  caused  by  the  failure  to  deliver 
said  message,  and  rendered  useless  thereby,  if  any ;  and,  in  addi- 
tion thereto,  such  an  amount  as  you  may  find  from  the  evidence 
to  be  just  and  reasonable  to  compensate  plaintiff  for  the  dam- 
ages sustained  by  reason  of  mental  anguish  suffered  by  him  by 
reason  of  failure  to  deliver  said  message,  if  any.  But  you  should 
not  allow  plaintiff  anything  for  loss  of  time  or  expense  in  going 
to  Creston,  Ohio,  nor  should  you  allow  plaintiff  for  the  money 
paid  by  Dorn  for  the  message  in  question." 

It  is  first  insisted  by  appellant's  counsel  that  the  plaintiff  can- 
not recover  because  he  made  no  contract  with  the  defendant,  and 
is  not  in  privity  with  it;  that  the  action  is  founded  on  contract, 
and  therefore  he  cannot  maintain  the  suit.  Such,  no  doubt,  is 
the  rule  in  England.  But  the  courts  of  this  country  almost  uni- 
versally hold  to  the  contrary.  In  the  recent  case  of  Herron  y. 
Telegraph  Co.,  90  Iowa,  129,  we  had  occasion  to  consider  this 
question;  and  the  holding  there,  which  is  in  accord  with  the  cur- 
rent of  judicial  opinion  in  this  country,  was  that  the  person  to 
whom  the  message  was  addressed  might  maintain  an  action  for 
the  damages  sustained  by  him. 

2.  It  is  conceded  by  appellant's  counsel  that  plaintiff  siiffered 
damages  under  the  first  two  heads  covered  by  the  instruction,  to 
the  amount  of  one  dollar,  and  no  complaint  is  made  of  the 
charge,  so  far  as  it  relates  to  these  two  items.  The  objection  to 
the  instruction  is,  that  it  allows  the  jury  to  assess  damages  for 
"mental  anguish,"  and  it  is  contended  that  such  damages  are  not 
allowable  in  actions  of  this  kind.  Counsel  also  insisted  that,  if 
such  damages  are  recoverable  in  any  case,  they  should  not  be  al- 
lowed here,  for  the  reason  that  the  testimony  negatives  any 
such  suffering  on  the  part  of  plaintiff  as  would  entitle  him  to 
recover.  Disposing  of  this  last  proposition  first,  we  have  to  say 
that  there  is  sufficient  testimony  in  the  record  to  justify  the 
conclusion  that  the  plaintiff  did  suffer  as  claimed.  The  evidence 
discloses  such  conduct  on  the  part  of  plaintiff  in  inquiring  for  a 
message  at  the  office  of  the  defendant  company,  and  in  the  efforts 
put  forth  by  him  to  ascertain  if  a  death  message  had  come,  as  to 

703 


§  185  ACTIONS  AGAINST  TELEGKAPH  COMPANIES. 

evince  mental  anxiety.  Plaintiff  says  he  was  desirous  of  attend- 
ing his  mother's  funeral,  and  that  he  felt  "hard"  because  of 
the  delay  in  the  delivery  of  the  message.  He  immediately  tele- 
graphed to  ascertain  if  he  could  be  present  at  the  funeral,  and 
took  up  his  journey  to  Ohio,  to  be  in  attendance  upon  the  burial. 
When  he  called  at  defendant 's  office,  after  the  receipt  of  thfe  mes- 
sage, he  was  excited  and  anxious.  He  complained  of  the  delay, 
and  wanted  to  know  why  the  message  was  not  delivered  at  his 
house.  We  think  these  declarations,  and  this  course  of  conduct, 
clearly  indicate  that  plaintiff  did  suffer  as  charged.  We  have, 
then,  the  question  as  to  whether  damages  for  mental  suffering 
can  be  recovered  in  actions  of  this  kind,  independent  of  any 
physical  injury,  where  the  company  is  advised  of  the  character  of 
the  message,  and  negligently  fails  to  deliver  it.  This  question 
has  been  variously  decided  by  the  different  courts  of  the  coun- 
try,  but,  up  to  this  time,  is  an  open  one  in  this  state.  The  fol- 
lowing cases  answer  the  proposition  in  the  affirmative :  So  Relle 
V.  Western  Union  Tel.  Co.,  55  Tex.  308,  40  Am.  Rep.  805; 
Stuart  V.  Western  Union  Tel.  Co.,  66  Tex.  580,  18  S.  W.  R.  351, 
59  Am.  R.  623 ;  Gulf  etc.  Ry.  Co.  v.  Wilson,  69  Tex.  739,  7  S.  W. 
R.  653 ;  Western  Union  Tel.  Co.  v.  Broesche,  72  Tex.  654,  10  S. 
W.  R.  734,  13  Am.  St.  R.  843 ;  Western  Union  Tel.  Co.  v.  Simp- 
son, 73  Tex.  423,  11  S.  W.  R.  385;  Western  Union  Tel.  Co.  v. 
Adams,  75  Tex.  531,  12  S.  W.  R.  857,  16  Am.  St.  R.  920 ;  Wo- 
mack  V.  Western  Union  Tel.  Co.,  Tex.  Civ.  App.,  May  10,  1893, 
22  S.  W.  R.  417 ;  Western  Union  Tel.  Co.  v.  Carter,  2  Tex.  Civ. 
App.  624,  21  S.  W.  R.  688 ;  Wadsworth  v.  Western  Union  Tel. 
Co.,  86  Tenn.  695,  8  S.  W.  R.  574,  6  Am.  St.  R.  864;  Northport 
etc.  R.  R.  Co.  V.  Griffin,  92  Tenn.  694,  22  S.  W.  R.  737;  Reese 
V.  Western  Union  Tel.  Co.,  123  Ind.  294,  24  N.  E.  R.  163 ;  West- 
ern Union  Tel.  Co.  v.  Stratemeier,  6  Ind.  App.  125,  32  N.  E. 
R.  871 ;  Western  Union  Tel.  Co.  v.  Newhouse,  6  Ind.  App.  422, 
33  N.  E.  R.  800 ;  Western  Union  Tel.  Co.  v.  Henderson,  89  Ala. 
510,  7  Sou.  R.  419,  18  Am.  St.  R.  148;  Thompson  v.  Western 
Union  Tel.  Co.,  106  N.  C.  549,  11  S.  E.  R.  269 ;  Young  v.  West- 
ern Union  Tel.  Co.,  107  N.  C.  370,  11  S.  E.  R.  1044,  22  Am.  St. 
R.  883 ;  Thompson  v  Western  Union  Tel.  Co.,  107  N.  C.  449,  12 
S.  E.  R.  427 ;  Chapman  v.  Western  Union  Tel.  Co.,  90  Ky.  265, 
13  S.  W.  R.  880;  Western  Union  Tel.  Co.  v.  Stephens,  2  Tex. 
Civ.  App.  129,  21  S.  W.  R.  148;  Logan  v.  Western  Union  Tel. 
Co.,  84  111.  468;  and  perhaps  others.  While  perhaps  equally  as 
large  a  number  answer  it  in  the  negative.  See  the  following: 
Western  Union  Tel.  Co.  v.  Wood,  57  Fed.  Rep.  471 ;  Russell  v. 
Western  Union  Tel.  Co.,  3  Dak.  315,  19  N.  W.  R.  408 ;  West  v. 
Western  Union  Tel.  Co.,  39  Kan.  93,  17  Pac.  R.  807,  7  Am.  St. 

704 


MENTZER  V.  W.  U.  TELEGEAPH  CO.  §  185 

R.  530;  Western  Union  Tel.  Co.  v.  Rogers,  68  Miss.  748,  9 
Son.  R.  823,  24  Am.  St.  R.  300;  Chapman  v.  Western  Union 
Tel.  Co.,  88  Ga.  763,  15  S.  E.  R.  901,  30  Am.  St.  R.  183 ;  Connell 
V.  Western  Union  Tel.  Co.,  116  Mo.  34,  22  S.  W.  R.  345,  38  Am. 
St.  R.  575 ;  International  etc.  Tel.  Co.  v.  Saunders,  32  Fla.  434, 
14  Sou.  R.  148 ;  Summerfield  v.  Western  Union  Tel.  Co.,  87  Wis. 
1,  57  N.  W.  R.  973,  41  Am.  St.  R.  17 ;  Francis  v.  Western  Union 
Tel.  Co.,  58  Minn.  252,  59  N.  W.  R.  1078,  49  Am.  St.  R.  507. 
Perhaps  other  cases  announcing  the  same  rule  may  he  found. 
Of  the  text-writers.  Shearman  and  Redfield  on  Negligence,  page 
692,  section  605 ;  Thompson  on  Electricity,  section  379,  3  Suther- 
land on  Damages,  sections  975-980,  inclusive;  2  Sedgwick  on 
Damages,  section  894,  and  others,  hold  that  such  damages  may  be 
recovered,  while  Wood's  Mayne  on  Damages,  page  74,  Cooley  on 
Torts,  271,  and  others,  seem  to  deny  it.  The  general  rule  which 
has  come  down  to  us  from  England,  no  doubt,  is  that  mental 
anguish  and  suffering  resulting  from  mere  negligence,  unac- 
companied with  injuries  to  the  person,  cannot  be  made  the  basis 
of  an  action  for  damages:  See  Ljmch  v.  Knight,  9  H.  L.  Cas. 
577 ;  Hobbs  v.  London,  etc.  Ry.  Co.,  L.  R.  10  Q.  B.  122.  And 
doubtless  this  is  the  rule  of  law  to-day  in  all  ordinary  actions, 
either  ex  contractu  or  ex  delicto.  But  it  must  be  remembered  that 
there  are  exceptions  to  the  rule,  and  that  the  telegraph,  as  a  means 
of  conveying  intelligence,  is  comparatively  a  new  invention.  The 
general  rule  above  referred  to  was  adopted  long  before  the  elec- 
tric current  was  harnessed  and  made  subservient  to  the  will  of 
man.  One  of  the  crowning  glories  of  the  common  law  has  been 
its  elasticity,  and  its  adaptability  to  new  conditions  and  new 
states  of  fact.  It  has  grown  with  civilization,  and  kept  pace  with 
the  march  of  events,  so  that  it  is  as  virile  to-day,  in  our  advanced 
state  of  civilization,  as  it  was  when  the  race  was  emerging  from 
the  dark  ages  of  the  past.  Should  it  ever  fail  to  be  adjustable  to 
the  new  conditions  which  age  and  experience  bring,  then  its  use- 
fulness is  over,  and  a  new  social  compact  must  be  entered  into. 

Let  us  look  at  this  query,  then,  upon  principle,  and  see  if  such 
damages  are  recoverable.  And*  first  we  must  determine  the  na- 
ture, objects,  and  purposes  of  telegraph  companies;  their  legal 
status  and  duties  to  the  public,  and  to  those  with  whom  they  do 
business,  then  the  nature  of  the  action,  and,  finally,  the  elements 
of  damage  which  may  be  recovered,  either  by  reason  of  their 
breach  of  contract  or  because  of  their  failure  to  perform  their 
(duties — and  see  if  there  is  any  reason  known  to  and  recognized 
by  the  law,  why  such  damage  should  not  be  allowed.  Far  be  it 
from  our  purpose  to  make  law.    We  cannot  legislate,  but  will 


45 


705 


§  185  ACTIONS  AGAINST  TELEGEAPH  COMPANIES. 

discover,  if  we  can,  whether  there  are  any  precedents  for  recov- 
ery lying  in  the  ashes  of  the  past. 

What,  then,  is  the  nature,  purpose,  and  object  of  the  telegraph, 
and  what  is  its  legal  status?  It  is  a  system  of  appliances  con- 
ducting the  electric  current  or  fluid,  used  for  the  purpose  of 
transmitting  intelligence,  thought,  or  news  from  one  place  to  an- 
other. Somewhat  akin  is  it  to  a  common  carrier,  in  this:  that 
they  are  both  carriers,  and  must  serve  all  alike;  but  the  carrier 
transports  persons  or  goods,  while  the  telegraph  conveys  intelli- 
gence. The  very  object  of  the  invention  is  to  quickly  convey  in- 
formation from  one  to  another,  upon  which  that  other  may  act. 
It  is  a  public  use,  and  for  that  reason  eminent  domain  may  be  ex- 
ercised in  its  behalf,  and  is  engaged  in  a  business  affecting  pub- 
lic interests  to  such  an  extent  that  the  state  may  regulate  the 
charges  of  companies  engaged  in  the  business.  It  is  not  an  in- 
surer of  the  accuracy  or  of  the  delivery  of  messages  intrusted  to 
it,  but  it  is  so  far  a  common  carrier  as  to  be  bound  to  serve  all 
people  alike,  and  to  exercise  due  care  in  the  discharge  of  its  pub- 
lic duties.  Nor  can  it  provide  by  contract  for  exemption  from 
liability  from  the  consequences  of  its  own  negligence.  Enough 
has  been  stated  to  show  that  it  owes  a  duty  to  all  whom  it  at- 
tempts to  serve,  independent  of  the  contractual  one  entered  into 
when  it  receives  its  messages.  Telegraph  companies  are  held, 
then,  to  the  exercise  of  due  care,  and  for  negligence,  either  in 
sending  or  delivering  messages,  are  liable  to  any  person  injured 
thereby  for  all  the  damages  he  may  sustain.  We  have  stated 
these  rules  in  order  to  show  that  one  who  is  injured  by  their  neg- 
lect of  duty  may  maintain  an  action,  either  ex  contractu  or  ex 
delicto,  for  the  injuries  sustained.  The  rule,  no  doubt,  is  as  an- 
nounced by  Judge  Cooley  in  his  work  on  Torts,  at  page  104  et 
seq:  "In  many  cases  an  action,  as  for  tort,  or  an  action  for  a 
breach  of  contract,  may  be  brought  by  the  same  party  on  the 
same  state  of  facts.  This,  at  first,  may  seem  in  contradiction 
to  the  definition  of  a  tort  as  a  wrong  unconnected  with  contract, 
but  the  principles  which  sustain  such  actions  will  enable  us  to 
solve  the  seeming  difficulty.  .  .  .  There  are  also,  in  certain 
relations,  duties  imposed  by  law,  a  failure  to  perform  which  is 
regarded  as  a  tort,  though  the  relations  themselves  may  be 
formed  by  contract  covering  the  same  ground.  .  ,  .  Thus, 
for  breach  of  the  general  duty  imposed  by  law  because  of  the 
relation,  one  form  of  action  may  be  brought,  and  for  the  breach 
of  contract  another  form  of  action  may  be  brought" :  See,  also, 
Rich  V.  New  York  etc.  R.  R.  Co.,  87  N.  Y.  382 ;  Nevin  v.  Pullman 
etc.  Car  Co.,  106  111.  222,  46  Am.  R.  688 ;  Baltimore  etc.  Ry.  Co. 
V.  Kemp,  61  Md.  619,  48  Am.  R.  134;  Cooley  on  Torts,  3.     In 

706 


MENTZEK  V.  W.  V.  TELEGRAPH  CO.  §  185 

this  state  all  forms  of  action  are  abolished.  The  pleader  simply 
makes  a  plain  statement  of  the  facts,  avoiding  legal  conclusions, 
and  may  recover  as  damages,  on  the  facts  stated,  whatever  the 
law  will  allow,  either  for  breach  of  the  contract  or  for  the  tort 
pleaded.  We  desire  to  make  this  plain,  for  if,  in  the  further 
progress  of  the  opinion,  it  should  appear  that  damages  for 
mental  suffering  are  allowed  in  eases  of  this  kind,  either  for 
breach  of  contract  or  for  tort,  then  plaintiff  may  recover.  With 
this  thought  in  mind,  the  reader  may  also  be  able  to  explain  and 
reconcile  some  of  the  cases  before  cited. 

Having  determined  the  nature  and  objects,  the  status,  and  re- 
lation of  the  defendant  company,  we  turn  to  the  verdict  of  the 
jury  in  this  case,  and  find  that  not  only  did  the  defendant  break 
its  contract,  but  that  it  was  guilty  of  negligence  as  well,  and  that 
under  all  known  rules  of  law,  plaintiff  is  entitled  to  some  dam- 
ages. Defendant  insists  they  are  simply  nominal,  and  plaintiff 
contends  he  has  suffered  acute  and  actual  damages,  for  which  he 
should  be  compensated.  The  general  rule  of  damages  for  breach 
of  contract  comes  down  to  us  from  the  opinion  of  Hadley  v. 
Baxendale,  9  Ex.  341,  and  is  as  follows:  "When  two  parties 
have  made  a  contract  which  one  of  them  has  broken,  the  dam- 
ages which  the  other  party  ought  to  receive  in  respect  of  such 
breach  of  contract  should  be  such  as  may  fully  and  reasonably 
be  considered  either  as  arising  naturally — i.  e.,  according  to  the 
usual  course  of  things — from  such  breach  of  contract  itself,  or 
such  as  may  reasonably  be  supposed  to  have  been  in  the  con- 
templation of  both  parties  at  the  time  they  made  the  contract, 
as  the  probable  result  of  the  breach  of  it."  In  actions  for  tort 
the  rule  is  much  broader.  The  universal  and  cardinal  principle 
in  such  cases  is,  that  the  person  injured  shall  receive  compensa- 
tion commensurate  with  his  loss  or  injury,  and  no  more.  This 
includes  damages  not  only  for  such  injurious  consequences  as 
proceed  immediately  from  the  cause  which  is  the  basis  of  the 
action,  but  consequential  damages  as  well.  These  damages  are 
not  limited  or  affected,  so  far  as  they  are  compensatory,  by  what 
was  in  fact  contemplated  by  the  party  in  fault.  He  who  is  re- 
sponsible for  a  negligent  act  must  answer  "for  all  the  injurious 
results  which  flow  therefrom,  by  ordinary,  natural  sequence, 
without  the  interposition  of  any  other  negligent  act  or  overpow- 
ering force."  Whether  the  injurious  consequences  may  have 
been  "reasonably  expected"  to  follow  from  the  commission  of 
the  act  is  not  at  all  determinate  of  the  liability  of  the  person  who 
committed  the  act  to  respond  to  the  person  suffering  therefrom. 
As  said  in  Stevens  v.  Dudley,  56  Vt.  158,  "it  is  the  unexpected, 
rather  than  the  expected,  that  happens  in  the  great  majority  of 

707 


§  185  ACTIONS  AGAINST  TELEGKAPH  COMPANIES. 

cases  of  negligence."  Under  all  the  authorities,  it  was  the  duty 
of  the  defendant  to  transmit  and  deliver  messages  intrusted  to 
it  without  unreasonable  delay;  and,  in  failing  to  do  so,  it  becomes 
liable  for  all  damages  resulting  therefrom :  Cooley  on  Torts,  646, 
647 ;  Gray  on  Communication  by  Telegraph,  sees.  81,  82,  et  seq; 
Wharton  on  Negligence,  sec.  767.  That  a  person  is  entitled  to 
at  least  nominal  damages  for  an  infraction  of  the  duty  imposed 
upon  a  telegraph  company  is  conceded.  And  it  must  also  be 
conceded  that  every  person  desires  to  attend  upon  the  obse- 
quies of  his  near  relations.  And  when,  able  and  anxious  to  at- 
tend, he  is,  through  the  negligence  of  a  telegraph  company,  not 
notified  of  their  death  in  time  to  attend  the  funeral,  he  naturally 
and  almost  inevitably  suffers  mental  pain  and  anguish.  No  man 
is  so  depraved  but  that  he  yet  remembers  his  mother,  and,  when 
able,  will  pay  her  the  last  respect  that  is  her  due.  In  the  case 
at  bar,  it  is  established  that  defendant  knew  the  nature  of  the 
intelligence  it  was  to  transmit,  and  also  knew  that,  if  it  was  not 
delivered  within  a  reasonable  time,  plaintiff  was  likely  to  be 
greatly  pained  on  accoiuit  not  only  of  not  knowing  of  the  death 
of  his  mother  until  she  was  placed  under  the  ground,  but  also 
because  of  his  inability  to  attend  the  funeral  on  account  of  the 
delay.  That  the  defendant  should  reasonably  have  contemplated 
such  results,  under  the  rule  laid  down  in  Iladley  v,  Baxendale, 
9  Ex.  341,  is  clear. 

But  it  is  insisted  that  damages  for  mental  suffering,  although 
contemplated  by  the  parties,  cannot  be  recovered  for  mere  breach 
of  contract.  That  such  is  the  general  rule  announced  by  the 
courts,  and  that  it  is  the  rule  with  reference  to  all  ordinary  con- 
tracts must  be  conceded.  But  it  must  be  remembered  that  this 
rule  grew  up  at  a  time  when  there  was  no  thought  of  the  trans- 
mission of  intelligence  by  electricity.  Breaches  of  contract,  such 
as  the  one  in  question,  were  unknown  to  the  common  law.  The 
business  of  telegraphy  has  grown  up  within  comparatively  re- 
cent years.  But  must  we  say  that  the  law  furnishes  no  remedy 
because  no  case  of  the  kind  was  known  to  the  common  law?  If 
so,  such  law  is  no  longer  applicable  to  our  present  conditions. 
Regard  must  be  had,  too,  to  the  subject  matter  of  the  contract. 
The  message  does  not  relate  to  property.  In  such  cases,  for 
breach  of  contract,  the  law  affords  adequate  compensation.  But 
it  does  relate  to  the  feelings,  the  sensibilities,  aye,  sometimes, 
even  to  the  life,  of  the  individual.  It  does  not  affect  his  pocket- 
book  seriously,  but  it  does  relate  to  his  feelings,  his  emotions, 
his  sensibilities — those  finer  qualities  which  go  to  make  the  man 
Shall  we  say  that  in  one  case  the  law  affords  compensation, 
and  in  the  other  it  does  not?     Instead  of  goods  which  are  con- 

708 


MENTZEE  V.  W.  U.  TELEGEAPH  CO.  §  185 

veyed  by  the  defendant,  it  is  intelligence — thought.    If  defend- 
ant were  a  common  carrier  of  goods,  it  would  be  liable  for  all 
damages  sustained  by  reason  of  its  breach  of  contract  to  de- 
liver them  within  a  reasonable  time.    But  it  is  said  no  damages 
can  be  recovered  for  failure  to  deliver  intelligence,  beyond  the 
amount  actually  paid  for  the  message,  or  nominal  damages,  al- 
though the  addressee  may  endure  the  greatest  of  mental  pangs, 
notwithstanding  the  fact  that  such  suffering  was  in  the  con- 
templation of  the  parties  at  the  time  the  contract  was  made.    Of 
course,  every  breach  of  contract  is  likely  to  cause  some  pain,  but 
most  of  these  contracts  relate  to  property  and  pecuniary  matters, 
and  in  such  case  the  law  furnishes  what  has  always  been  held  to 
be  an  adequate  remedy  for  the  pecuniary  loss  sustained.    Mental 
suffering  has  never  been  considered  as  within  the  contemplation 
of  the  parties  at  the  time  the  contract  is  entered  into,  and  recov- 
ery cannot  be  had  therefor.     But  few  contracts  have  direct  re- 
lation to  the  feelings  and  sensibilities  of  the  parties  entering  into 
them,   and  the  pain  growing  out  of  the  ordinary  breach   of 
contracts  relating  to  property  is  entirely  different  from  that 
suffered  from  a  death  message:     Sutherland  on  Damages,  sec. 
980.    We  find  a  well-recognized  exception  to  the  general  rule  that 
damages  cannot  be  had  for  mental  anguish  in  cases  of  breach  of 
contract,  in  the  action  for  breach  of  promise  of  marriage,  and 
the  reason  for  this  exception  is  quite  applicable  here.     In  such 
cases,  the  defendant,  in  making  his  contract,  is  dealing  with  the 
feelings  and  emotions.     The  contract  relates  almost  wholly  to 
the  affections,  and  one  is  not  allowed  to  so  trifle  with  another's 
feelings.     He  knows  at  the  time  he  makes  the  contract  that  if 
he  breaks  it  the  other  will  suft'er  great  mental  pain,  and  the 
courts,  without  exception,  have  allowed  recovery  in  such  a  case : 
See    HoUoway   v.    Griffith,    32    Iowa,    409,    7    Am.    Rep.    208; 
Royal    v.    Smith,    40    Iowa,    615.     The    distinction    we    have 
pointed  out  is  well  stated  in  1  Sutherland  on  Damages,  section 
92.    Other  exceptions  have  sometimes  been  made,  which  we  need 
not  further  refer  to.    As  said  in  the  case  of  Wadsworth  v.  W.  U. 
Tel.  Co.,  86  Tenn.  695,  8  S.  W.  R.  574,  6  Am.  St.  Rep.  864 :  ''These 
illustrations  serve  the  purpose  of  showing  that  in  the  ordinary 
contract  only  pecuniary  benefits  are  contemplated  by  the  con- 
tracting parties,  and  that,  therefore,  the  damages  resulting  from 
such  breach  of  contract  must  be  measured  by  pecuniary  stand- 
ards, and  that,  where   other  than  the  pecuniary  benefits  are 
contracted  for,  other  than  pecuniary  standards  should  be  ap- 
plied in  the  ascertainment  of  damages  flowing  from  the  breach." 
"The  case  before  us,  so  far  as  it  is  an  action  for  breach  of  con- 
tract, is  subject  to  the  same  general  rule ;  and  the  defendant  is 

709 


§  185  ACTIONS  AGAINST  TELEGKAPH  COMPANIES. 

answerable  in  damages  for  the  breach,  according  to  the  nature 
of  the  contract,  and  the  character  and  extent  of  the  injury  suf- 
fered by  reason  of  its  nonperformance.  The  message  was  sent 
for  a  particular  purpose,  of  which  the  defendant  had  knowledge. 
That  purpose  was  not  of  a  pecuniary  nature.  There  was  no 
offer  or  instruction  to  buy  or  sell  anything — no  proposition  or 
promise  with  respect  to  any  business  transaction.  The  message 
was  of  far  greater  importance  to  the  receiver  than  any  of  these. 
It  was  information  which  defendant  undertook  to  convey  for 
a  stipulated  sum,  and  which,  if  promptly  conveyed,  would  have 
enabled  plaintiff  to  have  been  with  him  at  the  last  moments,  and 

would  have  saved  her  the  injury  of  which  she  complains 

The  messages  were  in  proper  language,  and  lawful  in  purpose. 
She  was  entitled  to  the  information  they  contained,  and  to  what- 
ever benefits  that  information  would  have  conferred  upon  her, 
even  though  such  benefits  be  mainly  or  altogether  to  the  feelings 
and  affections.  The  defendant  contracted  that  she  should  have 
those  benefits,  and  that  she  should  be  spared  whatever  pain  and 
anguish  such  information,  properly  conveyed,  would  prevent." 
Reverting  now  to  the  damages  which  may  be  allowed  if  the 
action  is  treated  as  ex  delicto,  and  to  the  broader  rule  of  dam- 
ages in  cases  of  tort,  we  find  that,  in  very  many  of  these  actions, 
damages  are  recoverable  for  mental  anguish,  some  of  which  we 
will  refer  to  hereafter.  It  is  conceded  by  appellant's  counsel 
that  such  damages  may  in  certain  cases  be  recovered,  but  they 
insist  that  they  are  never  recoverable  unless  accompanied  by 
some  physical  injury.  It  seems  to  us  that,  when  it  is  conceded 
that  mental  suffering  may  be  compensated  for  in  actions  of  tort, 
the  right  of  plaintiff  to  recover  in  this  case  is  established.  Let  us 
look  to  some  of  the  cases  authorizing  recovery  in  such  cases,  and 
see  if  there  are  no  analogies.  Damages  for  injuries  to  the  feel- 
ings are  given,  though  there  are  no  physical  injuries,  where  a 
person  is  wrongfully  ejected  from  a  train:  Shepard  v.  Chicago 
etc.  Ry.  Co.,  77  Iowa,  54,  41  N.  W.  R.  564 ;  in  actions  for  slander 
and  libel :  Terwilliger  v.  Wands,  17  N.  Y.  54,  72  Am.  D.  420 ;  for 
malicious  prosecution :  Fisher  v.  Hamilton,  49  Ind.  341 ;  for  false 
imprisonment :  Stewart  v.  Maddos,  63  Ind.  51 ;  for  criminal  con- 
versation and  seduction,  and  for  assault.  So  damages  for  in- 
jured feelings  were  allowed  where  a  conductor  kissed  a  female 
passenger  against  her  will :  Craker  v.  Chicago  etc.  Ry.  Co.,  36 
Wis.  657,  17  Am.  R.  504.  So,  likewise,  it  has  been  held  that  the 
removal  of  the  body  of  a  child  from  the  lot  in  which  it  was 
rightfully  buried  to  a  charter  plot  gives  the  parent  a  right  to 
i-ecover  for  injury  to  his  feelings :  Meagher  v.  Driscoll,  99  Mass. 
281,  96  Am.  D.  759,    And  a  widow  may  recover  for  such  suffer- 

710 


MENTZER  V.  W.  U.  TELEGRAPH  CO.  §  185 

ing  and  nervous  shock,  against  the  person  who  unlawfully 
mutilates  the  dead  body  of  her  husband,  although  no  actual  pe- 
cuniary damages  are  alleged  or  proven :  Larson  v.  Chase,  47 
Minn.  307,  50  N.  W.  R.  238,  28  Am.  St.  R.  370.  See,  also,  Suth- 
erland on  Damages,  sec.  979,  and  authorities  cited  for  kindred 
cases.  The  wrongs  complained  of  in  these  cases  all  directly  af- 
fected the  feelings,  and  injury  thereto  proximately  resulted. 
But  not  more  so  than  in  the  case  at  bar,  where  the  injury  to 
the  feelings  is  apparent,  and  suffering  necessarily  followed.  This 
rule  of  necessity  applies  where  the  feelings  are  directly  affected 
by  the  nature  of  the  wrong  complained  of.  It  has  no  application 
to  such  mental  suffering  as  indirectly  results  from  the  commis- 
sion of  every  tort. 

Let  us  now  look  to  our  own  cases  for  a  moment,  and  see  what 
has  been  held.  In  the  case  of  Stevenson  v.  Belknap,  6  Iowa,  103, 
71  Am.  D.  392,  which  was  an  action  brought  by  a  father  for 
the  seduction  of  his  daughter,  this  court  approved  an  instruction 
that  damage  may  be  given,  not  only  for  his  loss  of  service  and 
actual  expenses,  but  also  on  account  of  the  wounded  feelings  of 
the  plaintiff,  and  of  his  anxiety,  as  a  parent  of  other  children, 
whose  morals  may  be  corrupted  by  the  example.  In  the  case  of 
McKinley  v.  Chicago  etc.  R.  R.  Co.,  44  Iowa,  318,  24  Am.  R.  748, 
which  was  an  action  for  an  assault  by  one  of  defendant's  em- 
ployees upon  the  plaintiff,  the  lower  court  instructed  the  jury 
that  plaintiff  might  recover,  as  compensatory  damages,  not  only 
for  bodily  pain  and  suffering,  but  for  the  outrage  and  indignity 
put  upon  him.  This  instruction  was  approved,  and  it  was  held 
that  mental  suffering  not  arising  from  bodily  pain,  but  from  the 
nature  of  the  assault,  might  be  recovered,  the  court  using  this 
language :  ' '  The  question  is  fairly  presented  whether  mental 
anguish,  arising  from  the  nature  and  character  of  the  assault, 

constitutes  an  element  of  compensatory  damages We, 

on  principle,  are  unable  to  see  why  mental  pain  arising  from 
or  caused  by  the  nature  of  the  assault  whereby  the  wound  was 
inflicted  ....  should  not  be  an  element  of  such  damages."  **A 
careful  examination  of  the  authorities  will  disclose  the  fact  that 
the  weight  of  adjudicated  cases  is  in  favor  of  the  proposition 
that  mental  anguish  arising  from  the  nature  and  character  of  the 

assault  is  an  element  of  compensatory  damages The  mind 

is  no  less  a  part  of  the  person  than  the  body,  and  the  sufferings 
of  the  former  are  sometimes  more  acute  and  lasting  than  those 
of  the  latter."  It  may  also  be  said  in  this  connection  that  the 
court  in  this  case  declined  to  follow  the  case  of  Johnson  v.  Wells, 
6  Nev.  224,  3  Am.  R.  245,  and  kindred  cases  which  are  relied 
upon  by  the  appellant's  counsel,  remarking  that  "the  decided 

711 


§  185  ACTIONS  AGAINST  TELEGRAPH  COMPANIES. 

weight  of  authority  is  opposed  to  the  view  taken  in  that  ease,  and 
we  are  unwilling  to  follow  it,  and  by  so  doing  ignore  the  other 
authorities  cited."  That  the  question  was  well  considered  and 
deliberately  decided  is  apparent  from  the  fact  that  Mr,  Justice 
Day  dissented  from  the  conclusion  of  the  majority.  In  the  quite 
recent  case  of  Shepard  v.  Chicago  etc.  Ry.  Co.,  77  Iowa,  58,  41 
N.  W.  R.  564,  we  went  still  farther,  and  squarely  held  that  dam- 
ages for  mental  suffering  are  recoverable,  although  there  was  no 
physical  pain  or  injury.  In  that  case  we  said :  "If  these  things 
[wounded  feelings]  may  be  considered  in  connection  with  physi- 
cal suffering,  in  estimating  actual  damages,  we  know  no  reason 
which  forbids  their  being  considered  in  the  absence  of  physical 
suffering.  It  is  said  that  the  'mental  pain'  contemplated  by  the 
court  in  the  case  last  cited  (McKinley  v.  Chicago  etc.  R.  R.  Co., 
44  Iowa,  315,  24  Am.  Rep.  748)  includes  something  more  than 
mere  wounded  feelings  or  wounded  pride,  and  that  the  latter  can 
be  considered  only  where  malice  is  alleged  and  proven,  and  where 
there  has  been  proof  of  actual  bodily  injury.  We  do  not  think 
the  claim  is  well  founded.  Humiliation,  wounded  pride,  and  the 
like  may  cause  very  acute  mental  anguish.  The  suffering  caused 
would  undoubtedly  be  different  in  different  persons,  and  no  ex- 
act rule  for  measuring  it  can  be  given.  In  ascertaining  it,  much 
must  necessarily  be  left  to  the  discretion  of  the  jury,  as  en- 
lightened by  the  charge  of  the  court.  The  charge  given  in  this 
case,  as  a  whole,  confined  the  jury  to  an  allowance  for  compen- 
satory damages."  In  the  case  of  Curtis  v.  Sioux  City  etc.  Ry. 
Co.,  87  Iowa,  622,  54  N.  W.  R.  339,  this  court  squarely  held  that 
damages  might  be  recovered  for  mental  pain  and  suffering,  al- 
though the  damages  for  physical  injury  were  merely  nominal ; 
and  further  held  that  such  damages  were  compensatory,  and  not 
punitive.  In  the  case  of  Parkhurst  v.  Masteller,  57  Iowa,  480, 
10  N.  "VV.  R.  864,  which  was  an  action  for  malicious  prosecu- 
tion, this  court  followed  McKinley  v.  Chicago  etc.  R.  R.  Co., 
44  Iowa,  318,  24  Am.  Rep,  748,  and  held  that  in  such  actions 
actual  damages  would  include  compensation  for  bodily  and  men- 
tal suffering,  and  clearly  held  that  damages  for  mental  suffering 
might  be  recovered  in  such  cases  although  entirely  disconnected 
from  bodily  suffering  or  disability.  In  a  case  of  assault  and  bat- 
tery (Lucas  V,  Flinn,  35  Iowa,  9),  this  court  held  that  damages 
for  mental  anguish  might  be  allowed  as  compensation.  In  the 
case  of  Paine  v.  Chicago  etc.  R.  R.  Co.,  45  Iowa,  569,  the  rule 
in  McKinley  v.  Chicago  etc,  R.  R.  Co.,  44  Iowa,  318,  24  Am.  Rep. 
748,  was  recognized ;  but  it  was  held  there  was  no  right  of  recov- 
ery for  injury  to  feelings,  on  account  of  the  peculiar  facts  of  that 
case.    And  the  case  of  Fitzgerald  v.  Chicago  etc.  R.  R.  Co.,  50 

712 


MENTZEE  V.  W.  U.  TELEGRAPH  CO.  §  185 

Iowa,  79,  merely  follows  Paine  v.  Chicago  etc.  R.  R.  Co.,  45 
Iowa,  569,  and  holds  that,  under  the  facts,  plaintiff  was  not 
entitled  to  recover.  The  rule  of  McKinley  v.  Chicago  etc.  R.  R. 
Co.,  44  Iowa,  318,  24  Am.  Rep.  748,  has  never,  to  our  knowledge, 
been  doubted  by  any  later  decision.  In  the  case  of  Stone  v.  Chi- 
cago etc.  R.  R.  Co.,  47  Iowa,  88,  29  Am.  Rep.  458,  it  was  held 
that  the  action  in  that  case,  owing  to  its  peculiar  facts,  was  an 
action  for  breach  of  contract;  and  that  damages  for  mental 
suffering  were  not  recoverable,  and  in  this  case  it  is  said :  "In- 
sult and  abuse  accompanying  a  breach  of  contract  cannot  affect 
the  amount  of  recovery  in  such  actions.  If  the  action  is  based 
upon  a  wrong,  the  jury  are  permitted  to  consider  injury  to 
feelings,  and  many  other  matters  which  have  no  place  in  actions 
to  recover  damages  for  breach  of  contracts":  Citing  Walsh  v. 
Chicago,  etc.  Ry.  Co.,  42  Wis.  23,  24  Am.  R.  376.  It  is  enough 
to  say  here  that  the  action  at  bar  is  ex  delicto,  or  that  damages 
may  be  recovered  as  if  it  were,  under  our  system  of  code  plead- 
ing. The  only  other  case  having  any  bearing  upon  this  question 
is  Hall  V.  Manson,  90  Iowa,  585,  58  N.  W.  R.  881,  which  was  a 
case  where  plaintiff  sought  to  recover  damages  for  personal  in- 
juries sustained  by  reason  of  a  defective  street  crossing.  The 
lower  court  instructed  the  jury  that  plaintiff  might  recover  "for 
the  peril,  if  any,  the  jury  may  find  she  was  subjected  to, 
from  the  evidence  in  the  case."  The  court  disapproved  the  in- 
struction, not  because  damages  for  mental  anguish  could  be 
recovered,  but  because,  "in  our  view  of  the  instruction,  its 
wording  would  warrant  the  jury  in  allowing  damages  for  mental 
pain  and  suffering,  which  would  include  peril,  and  also  for  peril, 
as  a  distinct,  independent,  and  additional  element  of  damage, 
thereby  allowing  double  compensation  for  the  peril  plaintiff 
was  in,  which  would  be  erroneous." 

From  these  cases  it  is  apparent  that  in  actions  of  tort  this 
court  has  frequently  announced  the  rule  that  damages  for  men- 
tal suffering  may  be  recovered,  although  there  is  no  physical  in- 
jury. And,  if  this  be  so,  why  is  not  this  a  case  where  they 
ought  to  be  allowed?  It  cannot  be  possible  that  here  is  a  legal 
wrong  for  which  the  law  affords  no  remedy.  The  wrong  is 
plain,  the  injury  is  apparent,  and  we  think  the  law  affords  a 
remedy,  for  compensatory  damages,  under  the  rules  above  given. 
It  must  not  be  understood  to  follow  that,  in  all  actions  ex  delicto, 
damages  for  mental  suffering  may  be  allowed.  There  must  be 
some  direct  and  proximate  connection  between  the  wrong  done 
and  the  injury  to  the  feelings,  to  justify  a  recovery  for  mental 
anguish.  But,  when  there  is  this  connection  so  manifest  as  in 
the  case  at  bar,  we  think  such  damages  ought  to  be  allowed.    It 

713 


§  185  ACTIONS  AGAINST   TELEGEAPH  COMPANIES. 

is  very  appropriately  said,  however,  in  one  of  the  cases  which  has 
been  cited,  that  "great  caution  should  be  used  in  the  trial  of 
cases  like  this,  as  it  will  be  so  easy  and  natural  to  confound  the 
corroding  grief  occasioned  by  the  loss  of  a  parent  or  other  rela- 
tive with  the  disappointment  and  regret  occasioned  by  the  fault 
or  neglect  of  the  company,  for  it  is  only  the  latter  for  which  re- 
covery may  be  had;  and  the  attention  of  juries  might  well  be 
directed  to  this  fact."  It  is  not  necessary  for  us  to  determine 
on  which  theory  damages  for  mental  anguish  are  recoverable.  If 
we  find  they  are  recoverable,  either  in  an  action  for  breach  of 
contract,  or  by  reason  of  a  breach  of  public  duty,  then  the  in- 
struction given  by  the  lower  court  was  correct,  and  should  be 
sustained.  It  will  be  noticed  that,  in  some  of  the  cases  holding 
to  a  contrary  doctrine  from  that  here  announced,  recovery  was 
denied  because  of  the  form  of  the  action ;  that  is  to  say,  it  was 
held  that  the  action  in  the  particular  case  was  for  breach  of  con- 
tract, and  that  damages  for  mental  suffering  were  not  recoverable 
in  such  an  action.  Whether  they  would  be  recoverable  in  actions 
ex  delicto  or  not  was  not  determined.  Let  us  look  for  a  moment 
at  some  of  the  objections  urged  to  such  a  rule  as  we  have  an- 
nounced. 

1.  It  is  said  that  such  suffering  is  speculative  and  remote. 
We  have,  as  we  think,  answered  this  by  showing  that  in  actions 
of  this  kind  it  is  direct  and  proximate  to  the  wrong  complained 
of. 

2.  It  is  urged  that  such  damages  are  sentimental,  are  vague 
and  shadowy,  and  that  there  is  no  standard  by  which  an  injury 
can  be  justly  compensated  or  approximately  measured.  This 
objection  is  answered  if  we  find  any  case  in  which  such  damages 
are  allowed,  for  if  they  may  be  allowed  in  one  kind  of  case  they 
may  in  all,  so  far  as  this  objection  is  concerned.  We  have  al- 
ready seen  numbers  of  cases,  both  from  this  and  other  states, 
wherein  it  is  held  that  damages  for  mental  suffering,  independ- 
ent of  physical  injury,  may  be  recovered.  It  is  conceded  by  coun- 
sel that  damages  can  be  recovered  for  mental  suffering  when  ac- 
companied by  physical  pain  or  bodily  suffering.  If  this  be  true, 
then  let  us  ask  how  they  can  be  any  more  accurately  measured 
when  so  accompanied  than  when  not.  Wlien  it  is  once  conceded 
that  mental  anguish  can  be  considered,  and  compensation  made 
therefor,  then  the  objection  last  urged  falls  to  the  ground. 

3.  It  is  said  there  is  no  principle  on  which  such  damages  can 
be  recovered.  We  have  endeavored  to  show,  to  the  best  of  our 
ability,  that  there  is  abundant  authority  to  justify  a  recovery  in 
such  cases. 

4.  It  is  contended  that  the  rule  opens  up  a  vast  and  fruitful 

714 


WEST  V.  W.  U.  TELEGEAPH  CO.  §§  185, 186 

field  for  speculative  litigation.  We  have  endeavored  to  so  guard 
and  limit  the  rule  that  there  may  be  no  mistaking  its  operation 
and  effect.  If  recovery  is  for  breach  of  the  contract,  then  it  can 
only  be  had  because  of  the  subject  matter — the  fact  that  it  is 
intelligence  that  is  transmitted,  and  the  feelings  only  affected. 
And,  if  the  recovery  is  had  because  it  is  a  tort,  then  a  somewhat 
similar  limitation  is  made,  which  we  have  tried  to  make  apparent. 
If,  as  thus  limited,  the  rule  opens  up  a  vast  and  fruitful  field  of 
litigation,  it  is  only  because  telegraph  companies  fail  to  do 
their  duty.  We  cannot  think  that  a  rule  which  will  tend  to 
make  telegraph  companies  more  careful  in  the  matter  of  deliver- 
ing their  messages  will  be  fraught  with  such  fearful  results  as 
counsel  imagine.  The  single,  plain  duty  of  a  telegraph  company 
is  to  make  transmission  and  delivery  of  messages  intrusted  to  it 
with  promptitude  and  accuracy.  When  that  is  done  its  respon- 
sibility is  ended.  When  it  is  omitted,  through  negligence,  the 
company  should  answer  for  all  injury  resulting,  whether  to  the 
feelings  or  the  purse,  one  or  both,  subject  to  the  proviso  that 
the  injury  must  be  the  natural  and  direct  consequence  of  the 
negligent  act.  We  cannot  conceive  of  any  danger  in  such  a 
rule.  It  seems  to  us  to  be  in  accord  with  the  enlightened  spirit 
of  modern  jurisprudence  and  that  in  actual  practice  no  evil  can 
result  therefrom.  Juries  may  be  prone,  in  cases  of  this  kind,  to 
place  their  estimates  high;  but  the  judge  is  ever  present,  with 
a  restraining  power,  ample  to  prevent  unconscionable  and  unjust 
verdicts.  Without  further  extending  this  opinion,  it  is  sufficient 
to  say  that  the  instruction  of  the  district  court  was  correct,  and 
the  judgment  is  aifirmed. 


186.     WEST  V.  WESTERN  UNION  TELEGRAPH  CO., 

39  Kan.  93;  17  Pac.  B.  807;  7  Am.  St.  B.  530.     1888. 

HoRTON,  C.  J.  This  was  an  action  brought  by  George  West 
against  the  Western  Union  Telegraph  Company  to  recover  ten 
thousand  dollars  damages,  occasioned,  as  claimed  in  the  petition, 
by  the  gross  and  malicious  negligence  of  the  company  to  trans- 
mit and  deliver  the  following  telegraphic  message : — 

''North  Topeka,  Ej^nsas,  September  14,  1885. 
"To  George  West,  Delphos,  Kansas,  care  Post-office. 
"Uncle  Sam  died  last  night;  funeral  Wednesday. 

John  G.  West.** 

Upon  the  trial,  after  the  plaintiff  had  closed  his  evidence,  the 
telegraph  company  interposed,  and  filed  a  demurrer  thereto, 

715 


§  186  ACTIONS  AGAINST   TELEGKAPH  COMPANIES. 

upon  the  ground  that  no  cause  of  action  was  proved.  The  court 
sustained  the  demurrer.  The  plaintiff  excepted,  and  brings  the 
case  here  for  review. 

The  testimony  introduced  tended  to  show  that  the  foregoing 
written  message  was  handed  by  John  West,  the  son  of  George 
West,  to  the  agent  of  the  telegraph  company,  at  its  office  at 
North  Topeka,  on  the  afternoon  of  its  date,  with  directions  "to 
forward  it  immediately";  that  the  message  was  ordered  by  John 
West  to  be  sent  for  the  benefit  of  his  father;  that  he  paid  the 
agent  forty  cents  for  sending  the  message;  that  subsequently 
his  father  repaid  to  him  the  money;  that  Delphos  is  about  one 
hundred  miles  west  of  North  Topeka;  that  at  the  date  of  the 
message,  and  subsequently,  it  was  operating  a  telegraph  line 
for  hire  between  the  towns  of  North  Topeka  and  Delphos,  with 
an  office  in  each  town;  that  George  West  has  resided  in  Kin- 
mundia,  Illinois,  since  1859;  that  in  September,  1885,  he  was 
visiting  in  Kansas,  and  at  the  date  of  the  message,  and  for 
several  days  thereafter,  was  with  friends  in  the  neighborhood 
of  Delphos;  that  Samuel  C.  West  was  his  oldest  brother,  and 
after  his  death  that  he  had  no  other  brother  living ;  that  Samuel 
lived  at  Philadelphia,  Pennsylvania,  and  at  the  time  of  his  death 
was  seventy-eight  years  of  age;  that  George  West  was  seventy- 
three  years  of  age;  that  he  was  expecting  to  hear  of  the  death 
of  his  brother,  on  account  of  his  ill  health,  and  was  anxious  to 
attend  his  funeral,  if  notified  in  time;  that  while  in  Kansas  he 
had  so  fixed  his  matters  as  to  start  at  a  moment's  warning  to 
attend  the  funeral ;  that  on  September  14,  1885,  he  inquired  at 
the  post-office  at  Delphos  for  his  mail,  but  did  not  receive  the 
telegram ;  that  he  inquired  frequently  afterward,  and  sent  others 
to  inquire  for  his  mail,  but  never  received  the  telegram;  that 
subsequently  he  learned  by  a  letter  from  his  son  John  of  the 
death  of  his  brother  Samuel,  but  the  information  came  too  late 
for  him  to  attend  the  funeral ;  that  if  he  had  received  the  tele- 
gram within  a  reasonable  time  after  it  had  been  sent,  he  could 
have  attended  the  same;  that  his  son  John  informed  the  agent 
at  the  office  of  the  telegraph  company  in  North  Topeka  that  the 
message  had  never  been  delivered;  that  George  West  also  in- 
quired at  the  office  of  the  telegraph  company  at  Delphos  on  the 
morning  of  the  18th  of  September  for  the  telegram;  that  the 
agent  said  that  none  had  been  received  for  him;  that  he  then 
told  the  agent  "he  would  investigate  the  matter,"  and  he  replied 
"he  had  received  none,  and  that  none  could  have  been  received 
without  his  knowing  it";  that  both  George  West  and  John  West 
were  informed  by  the  agent  at  North  Topeka  that  the  message 
had  been  sent  over  the  wire  at  its  date  to  Delphos ;  that  the  tele- 

716 


WEST  V.  W.  U.  TELEGRAPH  CO.  §  186 

gram  was  never  delivered  to  the  post-office  at  Delphos,  or  to 
George  West,  by  the  agent  of  the  telegraph  company,  or  any  one 
else. 

Upon  what  grounds  the  trial  court  sustained  the  demurrer 
to  the  evidence  is  not  clearly  disclosed.  In  our  opinion,  the 
demurrer  should  have  been  overruled,  as  there  was  ample  evi- 
dence introduced  for  the  case  to  go  to  the  jury.  The  message 
was  written  and  delivered  at  the  office  in  North  Topeka,  and 
paid  for  by  John  West,  the  son  of  the  plaintiff,  for  the  benefit 
of  the  latter.  Subsequently,  George  West  returned  to  his  son 
the  money  paid  by  him  to  the  telegraph  company,  and  ratified 
and  approved  his  son's  acts  in  the  transaction,  in  all  respects 
as  if  the  message  originally  had  been  written  and  sent  under 
his  direction.  In  Burton  v.  Larkin,  36  Kan.  246,  13  Pac.  R.  398, 
59  Am.  R.  541,  it  was  held  that  a  "person  for  whose  benefit  a 
promise  to  another,  upon  a  sufficient  consideration,  is  made  may 
maintain  an  action  on  the  contract  in  his  own  name  against  the 
promisor."  In  Dresser  v.  Wood,  15  Kan.  344,  it  was  held  "that 
where  an  action  is  commenced  by  an  attorney  at  law,  without 
the  knowledge  or  consent  of  the  plaintiff,  the  plaintiff  may  af- 
terward ratify  the  same,  and  thereafter  be  entitled  to  all  its 
benefits."  The  contract,  therefore,  made  by  the  son  with  the 
telegraph  company,  for  the  benefit  of  his  father,  which  was 
afterward  approved  and  ratified  by  the  father,  was  sufficient 
as  the  basis  of  this  action.  The  plaintiff,  upon  the  evidence 
introduced,  was  entitled  to  recover  judgment  against  the  de- 
fendant for  his  actual  damages,  including  the  forty  cents  paid 
for  the  transmission  of  the  message :  Western  Union  Tel.  Co.  v. 
Howell,  38  Kan.  685,  17  Pac.  R.  313 ;  Western  Union  Tel.  Co.  v. 
Crall,  38  Kan.  679,  17  Pac.  R.  309 ;  Logan  v.  Telegraph  Co.,  84 
111.  468. 

Further  than  this,  if  upon  another  trial  it  shall  be  established 
that  there  was  such  gross  negligence  on  the  part  of  the  agents  of 
the  telegraph  company  as  to  indicate  wantonness  or  a  malicious 
purpose  in  failing  to  transmit  and  deliver  the  message,  then  the 
plaintiff  would  be  entitled  to  exemplary  damages.  Such  dam- 
ages are  given  more  to  punish  the  wrong-doer  than  to  recompense 
the  party  injured:  Scott  and  Jarnagin  on  Telegraphs,  sees. 
417,  418 ;  Southern  Kansas  Ry.  Co.  v.  Rice,  38  Kan.  398,  16  Pac. 
R.  817,  and  cases  cited  therein.  In  Schippel  v.  Norton,  38  Kan. 
567,  16  Pac.  R.  804,  we  recently  held  where  no  actual  damage 
is  suffered,  no  exemplary  damages  can  be  recovered;  but  as  ac- 
tual damages  are  shown  in  this  case,  that  decision  is  not  ap- 
plicable. 

It  seems,  however,  to  be  claimed  upon  the  part  of  the  plaintiff 

717 


§  186  ACTIONS  AGAINST  TELEGEAPH  COMPANIES. 

that  he  is  entitled  to  recover  for  his  mental  anguish  or  suffering 
occasioned  by  the  delay  in  the  announcement  of  the  death  of  his 
brother.  Where  mental  suffering  is  an  element  of  physical  pain, 
or  is  a  necessary  consequence  of  physical  pain,  or  is  the  natural 
and  proximate  result  of  the  physical  injury,  then  damages  for 
mental  suffering  may  be  recovered,  where  the  injury  has  been 
caused  by  the  negligence  of  the  defendant;  but  in  an  action  of 
this  kind,  we  do  not  think  that  damages  for  mental  anguish  or 
suffering  can  be  allowed.  ' '  Such  damages  can  only  enter  into  and 
become  a  part  of  the  recovery  where  the  mental  suffering  is  the 
natural,  legitimate,  and  proximate  consequence  of  the  physical 
injury":  City  of  Salina  v,  Trosper,  27  Kan.  544.  The  general 
rule  is,  "that  no  damages  can  be  recovered  for  a  shock  and  injury 
to  the  feelings  and  sensibilities,  or  for  mental  distress  and  an- 
guish caused  by  a  breach  of  the  contract,  except  a  marriage 
contract":  Russell  v.  Western  Union  Tel.  Co.,  3  Dak.  315,  19 
N.  W.  R.  408.  In  So  Relle  v.  Western  Union  Tel.  Co.,  55  Tex. 
308,  40  Am.  R.  805,  it  was  decided  that  an  action  for  mental 
suffering  alone  can  be  maintained.  The  opinion  in  that  case, 
however,  was  prepared  by  a  member  of  the  commission  of  appeals 
of  Texas.  And  subsequently,  in  the  case  of  Gulf  etc.  Ry.  Co.  v. 
Levy,  59  Tex.  563,  46  Am.  R.  278,  the  supreme  court  of  Texas 
overruled  that  decision:  See,  also,  Wood's  Mayne  on  Damages, 
1st  Am.  ed.,  74. 

We  also  add  that  the  trial  court  should  have  permitted  the 
plaintiff  to  show  the  arrangements  made  with  his  son  John  to 
forward  to  him  at  Delphos  all  telegrams  and  mail  matter  that 
came  addressed  to  him  at  Topeka. 

The  judgment  of  the  district  court  will  be  reversed,  and  the 
cause  remanded  for  further  proceedings,  in  accordance  with  the 
views  herein  expressed. 


718 


INDEX. 

[references  are  to  sections.] 

ACCEPTANCE— 

delivery  not  complete  until,   19. 
of  guest,  40,  51,  56,  57,  58. 
by  common  carrier,  81,  82, 

evidence  of  acceptance,  82. 

bill  of  lading  issued  without  goods,  84. 
of  a  passenger,  129-131,  135,  137    139. 
see  also  Delivery. 
ACCOMMODATIONS— 

carrier  must  furnish,  80. 

suflB.cient  accommodations,  67,  68,  85. 
preferences,   73,   74,   79,   80,   85. 
unusual  demand,  67,  68,  85. 
of  passenger  carrier,  149,  151-153. 
of  telegraph  and  telephone  companies,  172,  173. 

ACTIONS— 

by  bailor  or  bailee  against  third  persons,  13,  14,  37,  41. 
against  pledgee  for  wrongful  sale,  21. 
of  trover  against  hirer  for  conversion,  12    33    34. 
by  hirer  against  third  persons,  14,  47. 

by  bailor  and  bailee  in  locatio  operis  bailments,  37,  41,  4T. 
against  carrier  for  refusal  to  carry,  62,  63. 
against  connecting  carriers,   83,   124,  127. 
against  common  carriers  of  goods — 
the  parties,  76,  122,  177. 
contract  action,   79. 

consignor  agent  of  consignee,  177. 
tort   action,   177. 
the  form  of  action,  79,  177,  185. 

modern  procedure,  185. 
the  evidence — 

see  Burden  op  Proof. 
the  damages  for  injury  to  or  loss  of  goods,  178,  180,  185. 
proximate   cause,    178-180. 
measure  of  damages,  178,  179. 
for  default  in  carrying,  67,  85,  168,  178,  179. 
against  carriers  of  passengers — 
the  parties,  133.  181. 

719 


720  INDEX. 

[references  are  to  sections,] 

ACTIONS— Continued. 

the  pleadings,   134. 
the  evidence,   131,  153. 
the  damages,   159,  181. 

for  wrongful  ejection,  142,  182. 
for  mental  suffering  or   fright,   183,   185. 
exemplary  damages,  142,   182. 
against  carriers  of  intelligence — 

against  telegraph  and  telephone  companiee — 
the  parties,   169,   174,   185,   186. 

contract  action  against  sender  or  his  principal,  185. 
tort  action  on  common  law  duty,  170,  185. 
the    evidence,    167,    169,    174. 
the  damages,  168,   169,  174,   185. 

duty  to  disclose  importance  of  message,  167,  168,  184, 
for  mental  suffering,   172,  185,  186. 
ACT  OF  GOD— 

defined,  62,  88,  89. 

distinguished  from  inevitable  accident,  62, 
as  excuse  in  case  of  delay,  89. 
ACT   OF  SHIPPER— 

as  excuse  for  loss  of  goods  by  carrier,  87,  92,  93,  100. 
ADVEESE   CLAIMS— 
see  Interpleader. 
redelivery  by  bailee,  3. 
cannot  be  set  up  by  borrower,  3. 
AGENT— 

of  bank  in  accepting  deposit,   19. 

of  carrier  has  authority  to  contract  to  furnish  cars,  67. 

in  contracts  as  to  liability  of  common  carrier,  66,  107. 
in  shipping  goods  over  connecting  lines,  77,   114,  125. 
liability  of  passenger  carrier  for  acts  of,  129,  135,  136,  141. 
must  be  competent,  careful  and  courteous,  154. 
of  Postoffice  Department — 

employees  are,  166. 
of  telegraph  and  telephone  companies,  167,  170,  172,  173,  185. 
telegraph  company  whose  agent,  169,  174,  185,  186. 
AGISTERS  AND  LIVERYMEN— 

have  no  lien,  40. 
ANIMALS— 

redelivery  of,  2,  16. 

carrier's  liability  for  losses,   85,  94-96,  104. 

railroads,  common  carriers  of  live  stock,  85,  94-96,  106, 
ASSIGNMENT— 
by  bailee,  2. 
of  bill  of  lading,  49,  84. 
of  pledge  by  pledgee,  22,  23,  26,  30. 
of  corporate  stock,  28. 


INDEX.  721 

[references  are  to  sections.] 

BAGGAGE— 

of  guest  at  inn,  51,  56. 

measure  of   innkeeper's  liability,  50,  54,  58,  59,  60. 
exceptions,   61. 
burden  of  proof,  58,  61. 
goods  must  be  infra  hospitium,  40. 
effect  of  owner's  custody,  52,  53,  61. 
of  passenger — 

carrier  an  insurer  of,  100,  152,  162. 
what  is  baggage,  93,  119,  165. 
value  of,  93,  119,  163. 
compensation  for  carrying,   93,   119. 
custody  of  passenger,  53,  54,  93,  164. 
passenger  supposed  to  accompany,   165. 
delivery  of,   165. 
BAGGAGE   CHECKS   AS   CONTRACTS   LIMITING   OAREIER'8  LIA- 
BILITY— 
see  Tickets. 
BAILMENT— 
defined,  1,  2. 

contractual  relation,  2,  13. 
delivery  and  acceptance  necessary,  19. 
subject  matter  any  personal  chattel,  25. 
possession  transferred,  but  not  title,  2,  3. 

bailment  distinguished  from  sale,  4. 
redelivery,  2,  3,  4,  14. 
classified,  1,  2,  8. 

general  principles  applicable  to  all  bailments — 
care,  1,  5,  6,  7. 
see  Care. 

three  degrees,  1,  6,  7,  8,  19,  103,  135. 
consideration,  1,  6,   10. 
expenses,  11. 

defect  in  bailed  chattel,  11. 
right  to  use,  1,  12,  34. 
property  of  bailee,  1,  2,  13,  14,  41. 
liability  to  third  persons,  23. 
termination  of  the  relation — 

bailment  contract  executed,  15. 
rescission  of  bailment  contract,  12,  15,  83. 
redelivery,   1,  11,  17,   19. 
what,   2,   4,   16. 
see  also  the  various  classes  of  bailments. 
BANK— 

see  Deposits,  Safety-Deposit  Companies, 
BILL  OF  LADING,  WAREHOUSE  RECEIPT— 
nature   of  warehouse  receipt,   24,  49. 
as  evidence  of  acceptance  by  carrier,  82. 
46 


722  INDEX. 

[references  are  to  sections.] 

BILL  OF  LADING,  WAREHOUSE  RECEIPT— Continued. 

a  receipt  and  a  contract,  69,  83. 

issued  without  goods,  84. 

as  a  contract,  69,  83,  114, 

aasignability  and  negotiability,  49,  84. 

nature  of  bill  of  lading,  49,  84,  114,  121. 
duplicate  bills,  49.      ■*■ 

liability  of  carrier  for  delivery  on  unindorsed  bill,  49,  121, 
as  contract  limiting  liability  of  common  carrier — 

must  be  assented  to  by  shipper,  66,  79,  114. 

cannot  be  varied  by  parol,  69,  107. 

must  be  delivered  with  the  goods,   101. 
as  evidence  of  right  to  receive  goods,  49,  121. 
as  directions  for  shipment,  77. 
BOARDING  AND  LODGING  HOUSES— 

not  inns,   50-54. 
BORROWING— 

see  Gratuitous  Loans. 
BURDEN  OF  PROOF— 

in  showing  negligence  of  bailee,  5,  9,  43. 

on  innkeeper,  58,  59,  61. 

on  carrier  in  case  of  losses  due  to  excepted  perils,  68,  89,  92,  97. 

in  case  of  losses  due  to  causes  exempted  in  contract,  79,  83,  9T, 
100. 

for  failure  to  perform  duty,  85. 
on  passenger  carrier  in  case  of  accident,  131,  153,  155,  160. 
in  action  ex  delicto  against  carriers  of  goods,  89,  114. 
on  telegraph  companies,  167,  169,  174. 
CARE— 

see  Negligence. 

required  in  various  classes  of  bailments,  1,  5-7. 

three  degrees,  1,  6-8,  19,  103,  135. 

burden  of  proof  in  showing,  5,  9,  43. 

is  question  of  fact  for  jury,  5,  6,  14. 
required  of  mandatory  and  depositary,  1,  5,  7,  15,  19,  20. 

same  care  as  of  one's  own,  1,  5,  6,  19,  20. 

special  skill,  6,  7,  135. 

facts  equally  within  knowledge  of  both  parties,  1,  20. 

liability  for  misfeasance  and  non-feasance,  10. 
required  of  borrower,  1,  8,  15. 
required  in  mutual  benefit  bailments,  1,  19.  , 

of  pledgee,  1,  7. 

of  bailee  for  hire,  1,  47. 

of  warehouseman,   9,  43. 
required  in  extraordinary  bailments,  67,  235,  347,  392. 
diligence  of  carrier  when  overtaken  by  Act  of  God,  89. 

in  case  of  delay,  99. 

burden  of  proof  in  showing,  79,  83,  89,  97. 


INDEX.  723 

[references  are  to  sections.] 

CAKE — Continued. 

of  passenger     carrier,    151-154. 

the  measure  of  diUgence,  100,  131,  135,  152,   153,  155-159. 

as  to  gratuitous  passengers,  103,  129,  133-136. 
sleeping  car  companies,  53,  54. 
owners  of  passenger  elevators,  160. 
of  telegraph  and  telephone  companies,  167,  170,   172,  173,  185. 
CARRIEES— 

see  Private  Carriers,  Common  Carriers,  Connecting  Carriers,  Car- 
riers BY  Water,  Carriers  of  Passengers,  Carriers  of  Intelli- 
gence,  Elevators,   Steamboats,    Sleeping   Cars,    Telegraph   and 
Telephone  Companies,   Postoffice  Department. 
CAEEIERS  BY  WATEE— 

where  make  delivery,  108,  110-114. 
CAEEIEES  OF  INTELLIGENCE— 

see  Postoffice  Department,  Telegraph  and  Telephone  Companies. 
CAEEIEES  OF  PASSENGEES— 
are  quasi-bailees,  65. 
definition,   65. 

illustrations,   54,   65,   129. 
passengers  defined,  129,  130,  133. 
relation  established  by — 

offer  to  become  passenger,  131,  154,  157. 
special  callings,   132. 
employees  not  passengers,  129,  133-135. 
payment  of  fare  not  necessary,  103,  129,  134,  136. 
trespassers,   130,   151. 
acceptance  by  carrier,  129,  130,  131,  135. 
what  amounts  to,   130,   131,   137,  139. 
rights  and  duties  of  carriers  of  passengers — 
by  operation  of  law — 

right  to  compensation — 
fare,  138,  139. 

tickets,  138,  140-142. 
sale  of,  140,  142. 
nature  of,  102,  138,  144. 

as   contract   with  passenger,   102,   125,   141, 

143,  144. 

as   between    passenger   and    conductor,    141, 

145,   146. 
conditions  printed  on,  102,  134,  143,  144. 
stop-overs,  coupon  and  limited  tickets,  102, 

144,  147,   148,   151. 

right  to  make  regulations,  131,  138,  139,  142,  144,  145,  148, 
162. 

must  be  reasonable,  141,  142,  146,  149-151,  157. 

ejection  of  passenger  for  breach,  139,  140,  149,  150. 
duty  to  accept  all,  129,  149,  150. 


724  INDEX. 

[references  are  to  sections.] 

CAKRIEES   OF    PASSENGEES— Continued. 

duty  to  furnish  accommodations — 
must   be   equal,    149. 
must  be  adequate  and  safe,   151-155. 
roadbed  and  bridges,   154,   158. 
agents  and  servants,   154. 
stational  facilities,   131,   157,   158. 
liability  for  injuries  to  passenger — 

measure  of  diligence,  100,   103,   129,   131,  135,   136,   152, 
153,   155-158. 

as  to  gratuitous  passengers,   103,  129,  135,  136. 
contributory  negligence  of  passenger,  131,  157,  158. 
what  amounts  to,  131,  154,  158,  159. 
must  be  proximate  cause,  156. 
of  owners  of  passenger  elevators,   160. 
liability  of  sleeping  car  companies,   53,   54. 
liability   for   delay,   161. 
liability  for  baggage,  100,  119,  152,   162. 
what  is  baggage,  93,  119,   163,   165. 
value  of,  54,  93,  119,  163. 
custody  of  passenger,  53,  54,  93,   164. 
passenger  supposed  to  accompany,   165. 
delivery  of,   165. 
under  special  contract — 
as  to  baggage,   102. 
as  to  passenger,   134. 

gratuitous  passengers,   103,  133,   134. 
termination  of  the  relation — 

contract  executed,   125,   154,    157,   158,   159. 
passenger  may  leave  conveyance,  144,   147,   154,  157. 
ejection  of  passenger,  139-142,   151. 
actions  against,   181-183. 
see  Actions. 
CASH  ON  DELIVERY— 

shipments  C.  O.  D.  by  express,  117. 
CAUSE— 

see  Proximate  Cause. 
CHATTEL  MOETGAGE— 

see  Pledge. 
COLLATEEAL  SECURITY— 

see  Pledge. 
COMMODATUM— 
classified,  1,   2,  6. 
see  also  Gratuitous  Loans. 
COMMON  CARRIERS  OF  GOODS— 

definitions  and  classification,  1,  62-65,  68,  95, 

public  employment,  62,  63,  65,  73,  79,  80,  85,  95. 
for  hire,  62,  103. 


INDEX.  725 

[references  are  to  sections.] 
COMMON  CAERIEES  OF  GOODS— Continued. 

kinds  of  goods  carried,  62,  65,  85,  95,  96. 
action  for  refusal,  62,  63. 

illustrations,  55,  64-66,  80. 
who  not  common  carriers,  53,  66. 
right  to  compensation,  62,  67-69,  100. 
amount  of  compensation,  202. 
statutory  control,  70,  71. 
demurrage,  72. 
discrimination — 

what  is  unlawful,  73,  74. 
on  what   goods,   75. 
who  liable,  76. 

carrier's  lien,  42,  46,  67,  72,  79. 
connecting  carriers,  46,  76,  77. 
storing  goods  held  on  lien,  72. 
goods  shipped  by  one  not  the  owner,  78. 
duty  to  carry  for  all,  68,  69,  79,  80,  100. 
when  liability  begins,  68,  81. 

delivery  and  acceptance,  67,  81,   82. 
evidence  of  acceptance — 
bill  of  lading,  82,  83. 

issued  without  goods,  84. 
as  a  contract,  69,  83. 
assignability  and  negotiability,  49,  84. 
nature  of  bill  of  lading,  49,  84. 
duplicate  bills,   49. 
aecommodations — 

suitable  accommodations,  73,  80,  85,  94. 
must  be  sufficient,   67,   68,   85. 

preferences,  73,  74,  79,  80,  85. 
unusual  demand,  67,  68,  85. 
need  not  accommodate  express  companies,  86. 
liability  for  loss — 

common  law  rule,  1,  62,  64,  66,  68,  79,  87,  93,  100. 
exceptions,  62,  64,  66,  68,  79,  87-89. 
Act  of  God,  1,  64,  88,  89. 

distinguished  from  inevitable  accident,  62. 
proximate  cause,   89. 
see  Proximate  Cause. 
diligence  of  carrier,  89. 
public   enemy,    1. 
public   authority,   90-92. 
act  of  shipper,  87,  93. 

concealing  value,  92,  93,  100. 
inherent  nature  of  the  goods,  94,  106. 
live  animals,  85,  94-96,  104,  106. 


726  INDEX. 

[references  are  to  sections.] 

COMMON  CAEEIERS  OF  GOODS— Continued. 

burden  of  proof  in  case  of  loss  from  excepted  perils,  89,  92, 
97. 
liability  for  deviation  and  delay,  35,  67,  97-99,  101. 

effect  of  delay  on  losses  caused  thereby,  67,  98,  99. 
reasonable  time,  97,  98. 
delay  not  sole  cause  for  loss,  89,  178. 
contract  affecting  carrier's  Kability,  62,  64,  65,  79,  100,  103. 
enlarging  liability,  66,  85. 
restricting  liability,   79,  103. 

historical  account,  100,  103. 
must  be  express,  79,  92,  97,  105. 
by  public  notice,  64,  79,  100. 

reveal  value  of  goods,  62,  93,  100,  105. 
rules  and  regulations,  114. 
limiting  liability  for  loss,  62,  66,  79,  92. 
English  rule,  100,  103. 
American  rule,   79,  100,   103,   114. 
by  special  contract — 

the  earlier  cases,  62,  68,  103. 

United  States  rule,  79,  103,  114. 
form  of  special  contracts — 
bill  of  lading,  66,  114. 

assent  of  shipper  necessary,  66,  79,  114. 
not  varied  by  parol,  69,  107. 
must  be  delivered  when  goods  are  accepted, 
101. 
parol  contract,  82,  101. 
tickets,  baggage  checks,  etc.,  102. 
extent  of  the  limitation — 

reasonable  and  just,  66,  103. 
as   to   the   nature   of   the   liability,   66,   79,    103, 
106. 

special  rules  in  certain  States,  103,  104. 
as  to  the  amount  of  the  liability,  105,  106. 
common  law  duty  remains,  79,  97,  103,  114. 
consideration  for  the  contract,  105,  114. 
parties  to  the  contract,  114. 

agent  of  the  carrier,  107. 
burden   of  proving  loss   due  to   exempted  cause,   79, 
83,  97. 
termination  of  the  relation — 
by  deUvery,  68,  108,   115. 

reasonable  time,   98,   110,  111. 
proper  place,  98,  108-110. 

by  carriers  by  water,  108,  110,  111. 

by  railroads,   112-114. 

by  express  companies,  109,  115,  116. 


INDEX.  727 

[references  are  to  sections.] 

COMMON  CAERIEKS  OF  GOODS— Continued, 
shipment   C.   O.   D.,   117. 
the  right  person,  118,  120. 

effect  of  fraud,  118,  119. 
presentation  of  bill  of  lading,  49,  121. 
consignee  presumptively  proper  party,  46,  121,  122. 
interpleader  if  dispute  as  to  proper  party,  120. 
to  a  connecting  carrier,  68,  77. 

duty  to   carry  beyond  carrier's  route,   68,   107,   115, 
124. 

partnership  arrangements,   123,   124. 
receiving   goods   directed   beyond   carrier's   line, 
68,   124. 

American  rule,   124,   125. 
special  contract  as  to  carriage,  107,  124,  125. 
carriers  agents  of  consignor,  77,  114. 
what  amounts  to  delivery  to  connecting  carrier,  81, 

126. 
presumption  as  to  carrier  liable,  68,  83,  97,  127. 
benefit  of  contract  exemptions  to  connecting  carriers, 
114. 
to  a  warehouseman,  72,  110,  112,  113. 
what  constitutes — 

Massachusetts  rule,  113. 
New  Hampshire  rule,  112. 
Michigan  rule,   114. 
delivery  by  carriers  by  water,  108,  110,  111. 
manner  of  delivery,  110. 
to  an  elevator,  80. 
by  excuses  for  non-delivery,  98,  120,  121. 

see  Act  of  God,  Public  Enemy,  Public  Authobity,  Act  of 

Shipper,  Animals. 
stoppage  in  transitu,  46,  78,  128. 
inability   to   find  consignee,   108-111,   117. 
actions  against,  177-180. 
see  also  Actions. 
COMPENSATION— 

in  deposits  and  mandates,  6,  7,  18,  19. 
in  gratuitous  loans,  10. 
in  mutual  benefit  bailments,  18,  36. 
of  innkeeper,  40. 

of  carrier  of  goods,  62,  67,  68,  93,  100,  103,  105. 
amount,  69. 

statutory  control,   70,  71. 
demurrage,   72. 

discrimination,  73,  74,  , 

on  what  goods,  75. 
who  liable,  76. 


728  INDEX. 

[references  are  to  sections.] 

COMPENSATION— Continued. 

carrier's  lien,  46,  67,   72. 

extends  to  connecting  carriers,  46,  77. 
of  carrier  of  passengers,  138,  139. 
see  Fare,  Tickets. 
for  baggage,   93,   119. 
of  telegraph  and  telephone  companies,  172,  173. 
right  to  regulate  by  statute,  70,  176. 
CONNECTING  CAREIEES— 
lien  for  freight,  46,  76,  77. 
delivery  to,  77. 

duty  to  carry  beyond  carrier's  route,  68,  107,  115. 
partnership  arrangements,   123,   124. 
receiving  goods  directed  beyond  carrier's  line,  68,  124,  125. 

American  rule,  114,   124,  125. 
special  contract  as  to  through  carriage,  107,  124,  125. 
carriers  agents  of  consignor,  77,  114. 
what  amounts  to  delivery  to,  81,  126. 
presumption  as  to  carrier  liable,  68,  83,  97,  127. 
benefit  to  of  contract  exemptions,  114. 
carrying  passenger  on  coupon  ticket,  144,  147. 
liability  of  for  baggage,  100,  119,  162. 
CONSIDERATION— 

in  bailment  contracts,  1,  10,  18. 
CONSIGNEE— 

prima  facie  liable  for  freight,  76,  122,  177. 
rights  subject  to  carrier's  Hen,  46,  78. 

presumptively  proper  party  to  receive  goods  from  carrier,  116,  121,  122. 
carrier's  inability  to  find,  108-111,  117. 
action  by  against  carriers  of  goods,  76,  79,  122,  177. 
CONSIGNOR— 

liable  for  freight  vrhen,  76. 
right  subject  to  carrier's  lien,  46,  78. 

carrier  liable  to  for  delivery  without  indorsed  bill  of  lading,  49,  121. 
connecting  carriers  agents  of,  77. 
stoppage  of  goods  in  transitu  by,  46,  78,  128. 
action  by  against  carriers  of  goods,  76,  79,  122,  177. 
CONTRACTS— 

consideration,  1,  10,  18. 

as  to  redelivery,  3,  17,  113. 

as  affecting  rights  and  duties  of  gratuitous  bailees,  1,  7,  19,  20. 

in  pledge,   21,   25,   32. 

as  to  sale  of  pledge,  31,  32. 

may  fix  relations  of  parties  in  locatio  operis  bailments,  44,  62. 

compensation  under,  36. 
warehouse  receipts  as,  24,  49. 
limiting  liability  of  innkeeper,  61. 
fixing  compensation  of  carrier,  62,  69,  74. 


INDEX.  729 

[refkrences  are  to  sections.] 

CONTEACTS— Continued. 

affecting  liability  of  carrier  of  goods — 

Bee  Common   Carriers  op  Goods,  Connecting   Carriers. 
bills  of  lading  as,  66,  69. 
limiting   liability   of   passenger  carrier — 

see  Carriers  of  Passengers. 
limiting  liability  of  telegraph  companies — 

see  Telegraph  and  Telephone  Companies. 
CONTEIBUTORY   NEGLIGENCE— 
of  guest,  59-61. 
of  shipper  of  goods,  87,  93. 
of  passenger,  54,  131,   156,  158. 
what  is,  131,  154,  158,  159. 
must  be  proximate  cause,  156. 
CONVEESION— 

by  wrongful  use  by  bailee,  1,  6,  7,  12,  34. 
redelivery  to  wrong  person,  3,  17,  118-120. 
by  wrongful  use  by  pledgee,  1,  21. 

by  pledgee's  misapplication  of  property,  1,  23,  25,  29. 
measure  of  damages,  25,  29. 
terminates  pledge,   25,   44. 
by  wrongful  use  by  hirer,  33. 
what  amounts  to,  12,  33,  34. 
trover  for,  33-35. 
by  warehouseman  or  elevator  owner,  48,  72. 
delivery  to  wrong  connecting  carrier  amounts  to,  77. 
damages  against  carrier  for,  35,  77,  179. 
see  Trover. 
COEPOEATIONS— 

in  bailments,   19. 
CUSTOM  AND  USAGE— 

as  to  expenses  in  locatio  rei,  11. 
important  in  case  of  warehouseman,  48. 
as  to  carrying  express  companies,  86. 

effect  on  agent's  power  to  contract  for  carrier,  84,  107,  114,  135. 
as  to  delivery  to  connecting  carriers,  68,  81,  115,  126. 
as  to  delivery  of  baggage,  119,  162. 
DAMAGES— 

recovered  by  bailee  against  third  person,  14. 
against  sleeping  car  companies,  54. 
for  conversion  of  property  by  pledgee,  25,   29,  31. 
for  wrongful  ejection  of  passenger,  139,  140,  142,  151,  182. 
against  carrier  for  keeping  incompetent  agent  or  servant,  154. 
for  injury  to  or  loss  of  goods,  178,  180. 

measure  of  damages,  179. 
for  default  in  carrying,  67,  85,  168,  177-179. 
against  passenger  carriers — 
the  measure,  159,   181. 


730  INDEX. 

[references  are  to  sections.] 

DAMAGES— Continued. 

for  wrongful  ejection,  140-142,  182. 
exemplary  damages  when,  142,  182. 
for  mental  suffering  or  fright,  183,  185. 

against  telegraph  and  telephone  companies — 

for  negligence  in  transmitting  and  delivering,  168,  169,  184. 
causing  mental  suffering,  172,  185,  186. 
DEATH— 

action  for  injury  causing,  181. 
DEFECT— 

in  bailed  chattel,  11. 

in  passenger  vehicle,  151-153. 

in  roadbeds  and  bridges,  153,  154. 

in  stational  facilities,  131. 
DELAY— 

liability  of  carrier  for  losses  due  to,  67,  68,  85,  89,  97-99,  111. 

liability   for   of  passenger   carriers,   161. 

of  telegraph  and  telephone  companies,  174. 

damages  against  carriers  of  goods  for,  67,  85,  178,  179. 
DELIVERY— 

not  complete  until  acceptance,  19. 

essential  in  pledge,  23,  24. 

to  common  carrier,  67,  81,  82. 

of  bill  of  lading,   101. 

by  common  carrier — 

see  Common  Carriers  of  Goods. 

of  baggage,  165. 

of  telegraph  message,  175,  176. 
DEMAND— 

by  bailor  to  terminate  bailment,  14,  17,  33,  41,  47,  120. 
DEMURRAGE— 

when  allowed  to  carriers,  72. 
DEPOSITUM— 

see  Gratuitous  Services. 
DEPOSITS— 

see  Gratuitous  Services. 

special  bank,   19. 

with  safe-deposit  companies,  7. 
DEPOT— 

see  Stational  Facilities. 
DEVIATION— 

makes  carrier  absolutely  liable,  35,  98. 
DILIGENCE— 

see  Care,  Negligence. 
DISCRIMINATION— 

in  receiving  guests,  50,  51,  53,  56. 

in  freight  rates,  73,  74. 

in  providing  accommodations,  79. 


INDEX.  731 

[references  are  to  sections.] 

DISCEIMINATION— Continued, 
the  Express  Cases,  86. 

in   accommodating  passengers,   149,   151. 

by  telegraph  and  telephone  companies,  167,  173,  176,  185. 
DROVER'S  PASS— 

see  Fare,  Carriers  of  Passengers. 
EJECTION   OF  PASSENGER— 

for  refusal  to  pay  higher  fare  on  train,   140-142. 

for  presenting  defective  ticket,  139,  141, 

for  breach  of  regulations,  138,  139,  142,  149,  151. 

damages  for,  140-142,  182. 
ELEVATORS- 

whether  grain  is  bailed  in,  4. 

as  warehouses,  43,   70. 

delivery  to  by  carrier,  80. 

owners  of  passenger  elevators — 

are  carriers   of  passengers,   160. 
EVIDENCE— 

see  Burden  of  Proof. 

parol  to  vary  bill  of  lading,  69,  82,  83,  107. 

in  actions  against  carriers  of  goods,  79,  89,  114. 
against  carriers  of  passengers,   131,   153. 
against  carriers  of  intelligence,  167,  169,  174. 
EXPENSES— 

in  bailments  in  general,  11. 

as  to  pledge,  16,  27. 

in  locatio  rei  bailments,  11, 
EXPRESS  COMPANIES— 

are  common  carriers,  66,  116. 

railroad  not  common  carrier  of,  73,  86. 

delivery  by,  personal,  109,  115,  116, 
shipment  C.  O.  D.,  117. 
EXTRAORDINARY    BAILMENTS— 

see  Innkeepers,  Common  Carriers. 
FARE— 

payment  not  necessary  to  constitute  one  passenger,  103,  129,  134,  136. 

passenger  carrier's  right  to,  138,  139. 

tickets  as  evidence  of  payment,  144,  146. 

payment  of  covers  cost  of  carrying  baggage,  93,  100,  119,  162. 
FINDER  OF  LOST  GOODS— 

as  bailee,   13,  19. 
FIRE— 

see  Act  of  God,  Innkeepers. 
FRAUD— 

see  Negligence,  Contracts. 

gross  negligence  an  evidence  of,  1,  19. 

as  to  revealing  to  carrier  value  of  goods,  92,  93,  100,  106,  163. 

will  not  excuse  delivery  to  wrong  person,  118-120. 


732  INDEX. 

[references  are  to  sections.] 

FEAUD— Continued. 

as  to  becoming  a  passenger,  130. 
against   telegraph  and   telephone   companies — 
see  Value. 
FEEIGHT— 

carrier's  right  to,  67,  68. 
discrimination,  73,  74. 
on  what  goods,  74. 
who  liable,  76. 
GEATUITOUS  LOANS— 
defined,  1. 

nature  of  the  relation — 
no  recompense,  10,  18. 
property  of  bailee,  3,  14. 
rights  and   duties  of  the  parties — 
care,  1,  8,  15. 
right  to  use,  15. 
termination  of  the  relation,  3. 
redelivery,  1,  3,  17. 
GEATUITOUS  SEEVICES— 
defined,  1,  6. 

deposits  and  mandates  compared,  6. 
the  nature  of  deposits  and  mandates — 
no   compensation,   1,  6,   7,   10,   18. 
special  banli  deposits,   7,   19. 
rights  and  duties  of  the  parties — 
diligence,  1,  5,  6,  7,  19,  20. 

same  care  as  of  one's  own,  1,  5,  6,  19,  20. 
special  skill,  6,   7,  8,  135. 

facts  equally  within  knowledge  of  both  parties,  1,  20. 
misfeasance   and   non-feasance,   10. 
right  to  use,  6,   7,   19. 
termination   of   the   relation,   19. 
GUEST— 

defined,  40,  56. 

who  not  a  guest,  40,  50-52,  56. 
how  long  a  guest,  40,  50,  56. 
right  to  resort  to  inn,  40,  50,  51,  53,  56. 
excuses  for  refusal  to  receive,  51,  56. 
right  to  bring  goods  to  inn,  50,  51,  53. 
liability  of  innkeeper  to,  50,  51. 

negligence  of  guest,  61. 
termination  of  relation,  40. 
HIEE— 

see  Locatio  Bailments. 
HOTELf— 

see  Innkeeper. 


INDEX.  733 

[references  ake  to  sections.] 

INJUKIES— 

see  Liability,  Negligence,  Common  Carriers  of  Goods,  Carriers  op 
Passengers. 
INJUNCTION— 

against  common  carriers,  73. 
INNKEEPER— 

history  of  inns,  50. 
definition,  50-53. 

extent  of  accommodations,  50,  52,  54. 
who  are  not  innkeepers,  50,  53,  54. 
sleeping-car  companies,  53,  54. 
steamboat  companies,  55. 

boarding,  lodging  and  restaurant  keepers,  50-54. 
holding  out  to  the  public,  50,  52. 
his  guest,  40,  56. 

acceptance  by  innkeeper,  57,  58. 
entertainment  furnished,  50,  52,  53,  56. 
not  compelled  to  receive  all,  40,  51,  56. 
duration  of  relation,  40,  50,  56. 
duty  to  receive,  40,  50,  51,  53,  54,  56,  57. 
liability  of  innkeeper — ■ 

for  goods  brought  to  the  inn,  40,  50,   51,  56. 

rules  of  liability  for  loss  of  goods,  50,  51,  54,  58-60. 
exceptions,  50,   52,  59,  61. 
burden  of  proof,  58,  59,  61. 
for  what  property,  40,  52-55,  57,  59. 
owner's  custody,  52,  53,  61. 
limitation  of  liability,   61. 
compensation  and  lien,  38,  40,  54. 
termination  of  relation,  40. 
INSURANCE- 
SCO  Property  of  bailor  and  bailee. 
INTERPLEADER— 

in  adverse  claims,  3. 

by  common  carrier  in  delivery  of  goods,  120. 
LEGISLATION— 
see  Statutes. 
LENDING— 

see  Gratuitous  Loans. 
LIABILITY— 

see  Care,  Damages,  Negligence. 

for  wrongful  use  of  bailed  chattel,  1,  6,  7,  12,  84. 

for  misfeasance  and  nonfeasance,  10. 

of  innkeeper  to  guest — 

for  guest's  goods,  50,  51,  53,  54,  56,  58-60. 

exceptions,   50,   52,   61. 
burden  of  proof,  58,  59,  61. 
for  what  property,  40,  52-55,  57. 


734  INDEX. 

[references  are  to  sections.] 

LIABILITY— Continued. 

of  common  carrier  of  goods — 

see  Common  Carriers  of  Goods. 
of  carrier  of  passengers — 

see  Carriers  of  Passengees, 
of  Postoffice  Department  and  employees,  166. 
of  telegraph  and  telephone  companies — 

see  Telegraph  and  Telephone  Companies. 
LIEN— 

defined,  37. 

distinguished  from  chattel  mortgage  and  pledge,   23-25, 

compensation  of  bailee  for  hire  secured  by,  37,  46. 

who  can  give,  38,  39. 

basis,  37,  40-42. 

not  extended  to  agisters  and  liverymen,  40. 

kinds  of,  42. 

how  regarded  by  courts,  26,  42. 
their  extent,  42,  43,  46. 
enforcement  of,  44,  45,  77.  '    • 

waiver  of,  37. 
termination,  44. 
of  warehouseman,  42,  43. 
of  pledgee,  26. 
of  innkeeper,  38,  40,  54. 
of  carrier,  46,  67,   72. 

as  to  connecting  carriers,  46,   77. 
storing  goods  held,  72. 

goods  shipped  by  one  not  the  owner,  46,  78. 
goods  stopped  in   transitu,  78. 
LIMITATION   OF  LIABILITY— 

see  Contracts,  Statutes. 
LIVERYMAN— 

see  Agisters. 
LIVE-STOCK— 

see  Animals. 
LOAN— 

see  Gratuitous  Loans,  Mutuum. 
LOG  AT  10  OPEBIS— 
classified,  1. 
defined,  1,  62. 
nature  of  relation,  1. 
rights  and  duties  of  the  parties — 
compensation,  18,   36. 
secured  by  lien,  37. 

who  can  give  lien,  38,  39. 

basis   of  lien,  37,   40-42. 

not  extended  to  agisters  and  liverymen,  40. 

kinds  of  lien,  42. 


INDEX.  735 

[references  are  to  sections.] 

LOCATIO  OPEBIS— Continued. 

how  regarded  hj  the  courts,  26,  42. 
their  extent,  42,  43,  46. 
enforcement  of  lien,  44,  45. 
waver  of  lien,  37. 
termination  of  lien,  44. 
property  rights  of  parties,  14,  41. 
ordinary  care  required,  1,  47. 
special  locatio  custodiae  bailments — 

warehousemen,   elevator   owners,   cold   storage   companies,   43. 
usage  and  custom  important,  48. 
warehouse  receipts,  24,  48,  49. 
confusion  of  goods,  4,  48. 
care  required,  9,  43. 
safe-deposit  companies,  7. 
LOCATIO  EEI— 
classified,  1. 
defined,  1. 

rights  and  duties  of  the  parties- 
bailor  warrants  title,  11. 
expenses  borne  by  whom,  11. 
right  to  use,  11,  33,  34. 

misuse  may  amount  to  conversion,  12,  33,  34. 
trover  for  conversion,  12,  33-35. 
special  property  of  hirer,  14,  47. 
termination  of  the  relation,  17,  33. 
MANDAMUS— 

against  common  carrier,  71-73,  80. 
against  telephone  companies,  176. 
MANDATUM— 
classified,  1. 

see  also  Gratuitous  Services. 
MISFEASANCE  AND   NONFEASANCE— 

liability  of  bailee  for,  10. 
MUTUAL  BENEFIT  BAILMENTS— 
see  Locatio,  Pledge. 
nature  of  relation  in  general — 

recompense  essential,  6,  7,  18. 
termination  of  the  relation,  33. 
MUTUUM— 

distinguished  from  bailment,  4. 
NEGLIGENCE— 
see  Care. 

three  degrees,  1,  6-8,  19,  103,  135,  159,  167. 
burden  of  proof  in  showing,  9,  43,  58,  59,  61,  79. 
of  carrier  when  overtaken  by  Act  of  God,  89. 

cannot  contract  against,  66,  79,  103,  106,  167. 
special  rules  in  certain  States,  103,  104. 


736  INDEX. 

[references  are  to  sections.] 

NEGLIGENCE— Continued. 

burden  of  proof  in  showing,  79,  97. 
see  BtJRDEN  OF  Proof. 
of  passenger  carrier — 

in  providing  safe  means  of  conveyance,  135,  151,  153. 

latent   defects,   152. 
as  to  roadbed  and  bridges,  153,   154. 
as  to   stational   facilities,  131,   157,   158. 
liable  for  slightest  negligence,   100,   103,   131,   134-136,   152,   153, 

155-158. 
contributory  negligence  of  passenger,  150,  158. 
affected  by  contract,  100,  103,  133,  134. 
of  telegraph  and  telephone  companies — 

contracts   against,    166-171.  , 

companies  liable  for  agents'  negligence,  167,  170,  185. 
actions  for,  169,  170,  174,  185. 
the  damages,   168,   169,   174,  184-186. 
NEGOTIABLE  INSTEUMENTS— 

see  Bills  op  Lading,  Stocks  and  Bonds. 
how  cared  for  by  pledgee,  7. 
not  sold  to  satisfy  pledge,   32. 
NOTICES— 

see   Common  Carriers  op  Goods,   Telegraph  and  Telephone  Com- 
panies. 
OWNEE— 

in  general,  bailor  is,  3. 
bailee  may  not  dispute  title,  3. 
custody  of  goods  by  guest,  52,  53,  61. 
delivery  to  by  carrier,  120. 
custody  of  goods  by  passenger,  53,  54,  164. 
may  sue  carrier,  76,   122,   177. 
PAETIES— 

see  Actions. 
PAETNEESHIP— 

among  connecting  carriers,  123,  124. 
PASS— 

see  Fare. 
PASSENGEES— 

see  Carriers  of  Passengers,  Elevators,  Steamboats,  Sleeping  Cas, 
Companies. 
PEESONAL  PEOPEETY— 

subject  of  pledge,  22,  25. 
PIGNUS— 

see  Pledge. 
PLEADINGS— 

see  Actions. 
PLEDGE— 

classified,  1. 


INDEX.  737 

[references  are  to  sections.] 

PLEDGE— Continued, 
defined,  1,  21,  22. 
nature  of  the  relation — 

distinguished  from  chattel  mortgage  and  lien,  23-25. 
subject  matter,  22,  25. 

incorporeal  property,    22,   24,   25. 
corporate  stock,   25,   28. 
delivery   essential,   23,   24. 
the  obligation,  26. 
rights  and  duties  of  the  parties — 
custody   of   pledgee,   22-24. 

profits  and  expenses  go  with  pledge,  16,  27,  28. 
right  to  use,  1,  21. 
assignment  by  pledgee,  23,  80. 
corporate  stock,  28. 

power  of   pledgee  to   compel  transfer   on  books  of  corpora- 
tion, 25. 
care,  1,  7. 

proceeds  of  collateral  how  applied,  22,  26,  27. 
conversion  by  misapplication,  25,  29. 
measure  of  damages,   25,  29. 
termination  of  the  relation — 
various  ways,   21,   22,  31. 

by  full  performance,  30. 
by  default  of  pledgor,  31. 

remedies  of  pledgee,   21,  22,  23,  31. 
suit  on  debt,   31. 
sale  at  common  law,  21,  22,  25,  31,  32. 

of  stocks,   bonds,   notes,    25,   32. 
sale   in   equity,   21-23,    31. 
sale  under  special  contract,  31,  32. 
equitable  principles   govern,   26,   30,   32,  44. 
equity    of    redemption,    21,    25. 
by  consent  of  pledgee,  44. 
by  wrong  of  pledgee,  29,  30,  44. 
redelivery  by  pledgee,  1,  16,  21,  23,  25-27. 
POSSESSION— 

passes  in  bailment,  2,  3. 

in  chattel  mortgage,  pledge  and  lien,  23-25,  40. 
right  of  pledgee  against  all  the  world,  22. 
essential  to  Ufe  of  pledge,  16,  21,  23-27. 
POSTOFFICE   DEPAKTMENT— 

postmasters,  mail  contractors,  etc.,  not  common  carriers,  116. 
PKIVATE  CAEEIEES— 

defined,  1,  62,  63,  103. 
PEOPEETY— 

of  bailor  and  bailee,  2,  3,  4,  13,  14,  16,  41,  122. 
of  borrower,  1,  3,  8,  14,  15. 
47 


738  INDEX. 

[references  are  to  sections.] 

PROPERTY— Continued, 
of  pledgee,  1,  16,  23-25. 
of  pledgor,  22,  25,  26,  30. 
of  hirer  and  letter,  11,  14,  47. 
of  parties  in  locatio  operis  bailments,  41,  47,  79. 
PROXIMATE  CAUSE— 

conversion  of  property  as,  29. 
Act  of  God  as,  89. 
delay  as,  89. 

of  injuries  to  passenger,   141. 
contributory  negligence  of  passenger,  156. 
of  injuries   to   goods,   178,   179. 
of  injury  to  passengers,  159,  182. 

of  failure  of  telegraph  company  in  transmission  of  message,  168,  169, 
172,   174,   184-186. 
PUBLIC  AUTHORITY— 

as  excuse  for  carrier's  failure  to  deliver,  90,  91,  92. 
PUBLIC  CARRIERS— 

see  Common  Carriers. 
PUBLIC  EMPLOYMENT— 

of  carriers  of  goods,  62,  63,  65,  73,  79,  80,  85,  95,  100,  103,  112,  113. 
of  innkeepers,  50,  52. 

of  carriers  of  passengers,  103,  129,  136,  149-151. 
of  telegraph  and  telephone  companies,  167,  170,  172,  173,  176,  185. 
PUBLIC  ENEMY— 
defined,  1. 

see  Common  Carrier. 
PUBLIC  POLICY— 

forbids  discrimination  in  freight  rates,  73,  74. 

makes  the  innkeeper  an  insurer  of  guest's  goods,  50,  54,  58-60. 

makes  common  carriers  insurers  of  goods  carried,  62,  66,  68,   79-100, 

103,  104,  112. 
as  to  contracts  by  common  carriers  limiting  their  liability,  62,  103- 
105,   114. 

must  be  reasonable  and  just,  103. 
as  to  carriers  of  passengers,  103,  129,   134,  136. 
affecting  conditions  printed  on  tickets,  144. 
demands  utmost  care  as  to  passengers,  103,  136. 
sleeping  car  companies,   53,   54. 
owners   of  passenger  elevators,   160. 
in  the  case  of  gratuitous  carriers,  103,  133,  134, 
QUASI-BAILEES— 

see  Carriers  of  Passengers,  Postoffice  Department,   Telboraph 
AND  Telephone  Companies. 
RAILROADS— 

see  Common  Carriers. 

not  common  carriers  of  express  companies,  86. 


INDEX.  739 

[references  are  to  sections.] 

BAILE0AD8— Continued. 

delivery  by,  where,  112-114. 
as  warehousemen,  72,  80,   108,   111-114. 
BEDELIVEEY— 

in  general,  1,  2,  3,  16,  17,  113. 
what,  2,  4,  16,  25. 
where,  17,  113. 
to  whom,  3,  17. 
by  gratuitous  bailee,  1,  15,  19. 
by  borrower,  1,  13,  15. 
by  pledgee,  16,  21,  23,  25-27. 
by  hirer,  33. 
EEDEMPTION  OF  PLEDGE— 

see  Pledge. 
EEGULATIONS— 

see  EuLES  and  Eegulations. 
EESTAUEANTS— 

see  Boarding  and  Lodging  Houses. 
BIGHTS  AND  DUTIES— 

see  the  various  classes  of  bailments. 
EOADBED  AND  BEIDGES— 

must  be  safe,  154,  158. 
EULES  AND  EEGULATIONS— 

public  notice  of  by  carrier  of  goods,  79,  100,  114. 

as  to  sale  of  tickets,  138,  140-142,  145. 

by  passenger  carrier,  131,  138-140,  142,  144,  148,  149. 

must  be  reasonable,  138,  141,  146,  149,  150,  151,  157,  162. 
ejection  of  passengers  for  breach,  139,  140-142,  151. 
by  telegraph  and  telephone  companies,  167,  168,  170,  172. 
SAFE-DEPOSIT    COMPANIES— 

are  bailees,  7. 
SALE— 

distinguished   from   bailment,   4. 

of  pledge  upou  default  of  pledgor,  21-23,  25,  26,  31,  32,  44. 
under  lien,  77. 
SKILL— 

see  Care. 
SLEEPING  CAE  COMPANIES— 
are  not  innkeepers,  53,  54. 

nor  common  carriers  of  passengers,  53,  54,  65,  129. 
nature  of  their  undertaking,  54. 
STATIONAL  FACILITIES— 

railroad  must  maintain,   131,  157,  158. 
STATUTES— 

extending  lien,    77. 

affecting  liability  of  innkeeper,  61. 

controlling  compensation  of  carrier,   70,   71,   73. 

as  to  negotiability  of  bills  of  lading,  49,  84. 


740  INDEX. 

[references  are  to  sections.] 

STATUTES— Continued. 

regulating  charges   by   telephone   companies,   176. 
giving  action  for  injury  causing  death,  133,  181. 
STEAMBOAT  COMPANIES— 

not  innkeepers,  55. 
STOCKS,  BONDS,  ETC.— 
redelivery  of,  25. 
may  be  pledged,  25. 

corporate  stock,   25. 
how  pledged,  25,  28. 
damages  for  conversion  of,  25. 
how  sold  to  satisfy  pledge,  32. 
STOPPAGE  IN  TBANSITU— 

goods  subject  to  carrier's  lien,  46,  78. 
as  excuse  for  non-delivery  by  carrier,  128. 
TELEGRAPH  AND  TELEPHONE   COMPANIES— 
are  quasi-bailees,   167-169,   185. 
definition,   185. 

exercise  a  public  calling,  167-170. 
are  not  common  carriers,  167,  168,  171,  185. 
rights  and  duties — 

right  to  compensation,  169,  172. 
must   not   discriminate,   173. 
right  to  make  rules  and  regulations,  167,  168,  172,  173. 
notice  of  rules,   170. 

what  regulations  reasonable,  168,   170,   172. 
duty  to  serve  all  impartially,   167,   173,   185. 
duty  to  provide  adequate   facilities,   172,   173. 
liability  for  mistakes  in  transmitting  message,  167,  170,  171,  185. 

contracts  limiting  liability,  167-171,  174,  185. 
liability  for  delay  or  failure  to  deliver,  167,  174. 
termination  of  the  relation — 
delivery  of  message,  175. 
actions  against — 

the  parties,  170,  174. 

contract  by  sender  or  his  principal,  169,  170,  174,  185. 
tort  on  common  law  duty,  170. 
the  evidence,   167,   169,   174. 
the  damages,   168,  169,  174,  184-186. 
TELEPHONE— 

see  Telegraph  and  Telephone  Companies. 
Uke   telegraph,    176. 
not  common  carriers,  176. 
duty  to  serve  all  impartially,  176. 
statutes  regulating  charges,  176. 
TERMINATION  OF  RELATION— 
see  the  various  classes  of  bailments. 


INDEX.  741 

[references  are  to  sections.] 

TICKETS— 

as  contracts  limiting  carrier's  liability,  102,  134,  143. 

required  of  those  desiring  to  become  passengers,  138,  139. 

as  evidence  of  right  to  ride,  and  may  contain  contract,  146. 

sale  of,  140-142. 

nature  of,   102,  138,  144. 

as  contract  with  passenger,  102,  125,  141,  143,  144. 
as  between  passenger  and  conductor,  141,  145,  146. 
conditions  printed  on,  134,  143,  144. 

stop-overs,  coupon  and  limited  tickets,  102,  144,  147,  148,  151. 
TIME-TABLES— 

carriers  should  conform  to,  161. 
TITLE— 

see  Property,  i 

does  not  pass  in  bailment,  2,  3,  4. 

of  bailor,  bailee  may  not  dispute,  3. 

of  pledgee,  1,  23-25. 

of  assignee  of  pledgee,  28. 

letter  warrants,  11. 

of  bailee  for  hired  services,  41,  47. 
TRANSIENTS— 

kept  at  inn,  52. 

defined,  50,  52,  53,  56. 

how  become  guests,  57,  58. 
TEOVER— 

see  Conversion. 

for  failure  to  restore  chattel,  19. 

against  pledgee,  21. 

for  wrongful  sale  of  property,  44,  77. 
USAGE—  ' 

see  Custom. 

USE— 

right  to  by  bailee,  6,  7,  12,  15,  19,  34. 
by  pledgee,  1,  21. 
by  hirer,  33. 
VALUE— 

duty  of  shipper  to  reveal,  92,  93,  100. 

public  notice  to  reveal,  62,  93,  100,  105. 

fixed  by  contract,  105,  106. 

duty  of  passenger  to  reveal  as  to  baggage,  54,  93,  100,  163. 

duty  to  disclose  importance  of  telegraph  message,  167,  168,  184. 

VEHICLES— 

of  passenger  carrier  must  be  safe,  151-153. 

defects  in,  raise  presumption  of  negligence,  153. 
WAREHOUSEMAN— 

are  custodians  for  hire,  43. 

usage  and  custom  of  importance,  48. 


742  INDEX. 

[references  ABE  TO  SECTIONS.] 

WAREHOUSEMAN— Continued. 

nature  of  warehouse  receipts,  24,  49. 

confusion   of   goods,  48. 

care  required,  9,  43. 

warehouseman's  lien,  42,  43. 

storing  goods  held  on  lien,  72. 

railroad  companies  as,  72,  80,  112,  113. 

connecting  carriers  are  not,  81,  126. 

delivery  to  by  a  carrier,  108,  111-114. 
WAREHOUSE  RECEIPTS— 

3ee  Bills  or  Lading,  Waebhouskman. 
WARRANTY— 

see  TlTLB, 


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